ELDEN & JACOBS
[2020] FCCA 2252
•13 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELDEN & JACOBS | [2020] FCCA 2252 |
| Catchwords: FAMILY LAW – Property – declaration sought under section 90RD of the Family Law Act 1975 (Cth). |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AA, 39B,90RD, 90SM Evidence Act 1995 (Cth), s.140(1) |
| Cases cited: Ricci v Jones [2011] FamCAFC 222 S v B (No 2) (2004) 32 Fam LR 429 Cadman & Hallett (2014) FLC 93-603 Aitken v Deakin [2010] FMCAfam 35 Todd & Todd (No. 2) (1976) 1 Fam LR 11186 Falk & Falk (1977) 3 Fam LR 11238 Pavey and Pavey (1976) FLC 90 – 051 Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213 Lynam v DG of Social Security (1983) 52 ALR 128 |
| Applicant: | MS ELDEN |
| Respondent: | MR JACOBS |
| File Number: | BRC 13206 of 2019 |
| Judgment of: | Judge Tonkin |
| Hearing date: | 13 July 2020 |
| Date of Last Submission: | 13 July 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 13 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Barnes |
| Solicitors for the Applicant: | Nita Stratton-Funk & Associates |
| Counsel for the Respondent: | Mr Bunning |
| Solicitors for the Respondent: | JMW Legal |
ORDERS
Pursuant to section 90RD of the Family Law Act 1975 (Cth) (“the Act”) it is DECLARED that a de facto relationship existed between MS ELDEN and MR JACOBS between 2006 and July 2009 save for a period of about 6 months in 2007 and save for a few months from December 2008.
It is declared that the parties’ de facto relationship extended for a period of about 3 years between 2006 and July 2009.
It is declared pursuant to section 90RD (1) (b) of the Family Law Act that no de facto relationship existed between the parties in 2010 and thereafter.
The application for leave to extend time to commence property proceedings is listed for mention on 15 October 2020 at 9:30am in the Federal Circuit Court of Australia at Brisbane.
IT IS NOTED that publication of this judgment under the pseudonym Elden & Jacobs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 13206 of 2019
| MS ELDEN |
Applicant
And
| MR JACOBS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant de facto wife commenced proceedings on 4 November 2019 by filing an application seeking a declaration under section 90RD of the Family Law Act that a de facto relationship existed between the parties from 2005 until 18 January 2018.[1] She sought in the alternative that leave be granted to extend time in which to bring her application for adjustment of property interests.
[1] Prior to that date the applicant filed an application for consent orders dated 31 October 2019 with respect to parenting issues.
The respondent filed a response on 24 January 2020 seeking a declaration under section 90RD (1) (b) of the Family Law Act that no de facto relationship existed between the parties after 2010. Further he sought a declaration that the applicant not be granted leave to extend time in which to bring an application for adjustment of property interests and the application be dismissed.
In the alternative the respondent sought a declaration that pursuant to section 90SM (1) (a) of the Family Law Act1975 it was unjust and inequitable for an alteration of property to be made between the applicant and respondent pursuant to section 90SM (3) of the Act.
Documents
The applicant relied on her affidavits filed on 4 November 2019 and 17 March 2020, her financial statement filed on 4 November 2019 and the affidavits of Ms B filed on 13 February 2020, Ms C filed on 17 March 2020, Ms D filed 17 March 2020 and Ms E filed 17 March 2020. Mr F also filed an affidavit on 13 March 2020 on behalf of the applicant. The respondent relied on his affidavit filed on 24 January 2020, a financial statement of the same date, an affidavit of Ms G filed 24 January 2020, Mr H filed 24 January 2020, Mr J filed 31 January 2020, Ms K filed 31 January 2020, Ms L filed 31 January 2020 and Mr M filed 31 January 2020. The applicant filed a tender bundle Exhibit A1 and the respondent filed the following tender bundles Exhibit R1 (child support documents), Exhibit R2 (Centrelink documents), Exhibit R3 (applicant’s tax returns) Exhibit R4 (respondent’s tax returns) and Exhibit R5 (documents relating to draft property consent orders). The matter proceeded to hearing on 13 July 2020 via video link[2] with both parties represented by Counsel.
[2] The matter proceeded electronically via Microsoft Teams pursuant to Joint Practice Direction 2 of 2020 – Special Measures in Response to COVID-19
Issues
The issues in contention at trial were:
a)The nature and length of the parties’ de facto relationship;
b)The date of separation; and
c)Whether a declaration should be made.
Background
The applicant is 43 and was born in the Country N in 1976. She has lived in Australia since 1989 and became an Australian citizen in 2005. The respondent was born in Australia in 1977 and is 42 years old.
The parties have two children X born in 2008 now almost 12 and Y born in 2010 now 10.
In 2001 the respondent purchased a property at Suburb Z in his sole name for $130,000 with a mortgage of $104,000 using savings to pay the balance. He lived there for three years with friends who contributed towards costs. In 2006 the applicant moved into that property with the respondent.
De facto relationship
The applicant has the onus of establishing that a de facto relationship existed for the requisite period (see Ricci v Jones (2011) FamCAFC 222) and that onus is on the balance of probabilities (see section 140 (1) Evidence Act 1995). In S v B (No 2) (2004) 32 Fam LR 429 Dutney J said at [49]:
“In a de facto situation it is the party asserting the relationship that must prove cohabitation of the required quality” and at [50] “the party asserting a de facto relationship must prove the ‘positive aspects’ of the relationship rather than the party denying it being required to prove the negative.”
Pursuant to section 39B of the Act the Court has jurisdiction with respect to matters arising under the Act in respect of which de facto financial causes are instituted under the Family Law Act 1975 (Cth). Part VIIIAB of the Act deals with financial matters relating to de facto relationships. Under section 4 of the Act a de facto financial cause means relevantly, “(c) proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them.”
Section 90SM (1) of the Act provides:
“In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them – altering the interests of the parties to the de facto relationship in the property; or
…….”
Section 90RD (1) (b) of the Act provides that the court may declare that a de facto relationship existed or never existed between 2 persons. Pursuant to subsection 90RD (2) the Court may also declare the periods or period of the de facto relationship for the purposes of paragraph 90SB (a), whether there is a child of the de facto relationship and 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).
Section 4AA of the Act provides:
(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).
(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.
…….”
In her affidavit filed 4 November 2019 the applicant contends that the parties started dating in 2003 and commenced cohabitation in 2005 when the applicant moved into the respondent’s home at Suburb Z.
The respondent contends that the parties’ relationship commenced some time in 2006 when the applicant moved into his property at Suburb Z. Prior to the parties cohabiting the respondent’s friend Mr M lived in the home with him. He deposed in his affidavit that the applicant moved into the home in 2006. I find that the parties commenced a de facto relationship in 2006 when the applicant moved into the respondent’s home on a permanent basis.
The applicant deposed that in 2007 the parties separated for about 6 months when she moved out of the respondent’s property into a property she purchased. She said the parties reconciled and she moved back in with the respondent in early 2008. I find the parties were in a relationship between 2006 until early 2008 for a period of about 18 months.
The respondent contends that when he completed his apprenticeship as a tradesman in 2008 he wanted to travel but the applicant was not interested in travelling and the relationship ended. He deposed that the applicant contacted him in early 2008 to advise him she was pregnant. At that time the respondent was in a relationship with another woman however he ended the relationship and moved back into the Suburb Z home with the applicant. I find that the parties had a short separation in 2008 however I am unable to quantify the period they were separated and find the brief separation immaterial.
The first of the parties’ children X was born in 2008.
The applicant contends that in late 2008 she discovered that the respondent was having an affair and in 2008 she moved out of the respondent’s home with X (who was about 3 months old) and moved in with her father and stepmother. She said the respondent would visit her there but did not stay over.
The respondent deposed that shortly after X was born the relationship became strained and the applicant would leave the home with the child, threaten the respondent that he would never see the child again and remain uncontactable for periods of time. He contends he ended the relationship with the applicant in July 2009 when he moved into his brother’s home at Suburb A. He conceded that in mid - 2009 the parties went on a camping trip and Y was conceived.
The respondent deposed that on 12 January 2009 he had discharged the mortgage on the Suburb Z property. He said the parties attempted to discuss financial settlement and he asked the applicant to vacate the Suburb Z property but she refused. He said when living at his brother’s home in Suburb A he received a child support assessment by mail. In April 2009 he commenced paying child support of $300 per week reaching a private agreement with the applicant. It is common ground that the respondent paid the applicant $300 per week. It is disputed by the applicant that this was child support.
Separation
In Cadman & Hallett (2014) FLC 93-603, on appeal before the Full Court of the Family Court, the issue before the trial judge had been when the relationship between the parties ended. The appellant contended that the relationship ended in January 2000. The respondent argued that the relationship ended in October 2010. The trial judge found that the appellant formed an intention to end the relationship in mid-2010 when he changed his will. In dismissing the appeal, the Full Court considered and applied the interpretation of the statute, and the relevant principles emerging from leading authorities, which determine a “de facto relationship” as a matter of law.
Justice Rees in Cadman & Hallett (at first instance) [2013] FamCA 819, after referring to a number of authorities dealing with both married and de facto couples, said at [133]:
“[133] The Full Court (in Price & Underwood [2008] FamCAFC 46) stressed the importance of the necessity of one party communicating to the other his intention to end the relationship.
[134] Thus the authorities establish that in order to establish that a relationship has ‘broken down’ for the purpose of the legislation, it is necessary that one party forms an intention to end the relationship, that the party acts upon the intention and that the intention is communicated to the other party.”
In Aitken v Deakin [2010] FMCAfam 35 McGuire FM (as he then was) said at [8 – 9]:
“[8]....Counsel for both parties agree that I should be guided by the early decisions of the Family Court of Australia in respect of separation under one roof in relation to divorce applications.
[9] Those authorities make it clear that there are three elements of separation in a legal sense. They are:
(a)The development of an intention to separate. That intention need not be mutual;
(b)The communication of that intention to the other party. In my view such communication should be unambiguous and unconditional; and
(c) Some form of action upon the determination to separate.”
[10] I am of the view that the test of the element of ‘communication’ is an objective one.”
In Todd & Todd (No. 2)[3] Watson J held (though dealing with marriage):
“Separation can only occur in the sense used by the Act where one or both of the spouses formed the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed.”
[3] (1976) 1 Fam LR 11186; 25 FLR 260; FLC 90-008
The Full Court of the Family Court has made it clear that there is a need to communicate the intention to separate to the other party. That communication can be either spoken or unspoken (see Falk & Falk[4]).
[4] (1977) 3 Fam LR 11238; FLC 90-247
It remains that each case must be determined upon its own facts. As the Full Court of the Family Court said in Pavey and Pavey (1976) FLC 90 – 051 at [75,214]:
...it is not possible to apply some mathematical formula to these activities and determine whether a “separation” has occurred. Rather the evidence should examine and contrast the state of the marital relationship before and after the alleged separation.”
The applicant moved in with her father in December 2018. The respondent moved out of the Suburb Z home in July 2009. The applicant and X lived in the Country N from 2009 to late 2009. I am satisfied that the applicant communicated her intention to separate from the respondent when she moved out of the home in December 2008, applied for child support in April 2009 and travelled with the child X to the Country N in mid 2009. I am satisfied that prior to mid 2009 the respondent communicated his intention to separate to the applicant. I find the parties separated in about July 2009. The applicant contends they reconciled after this time and lived as de facto partners until 2018.
Credibility
There is almost a complete absence of agreement in this matter with the parties in dispute regarding final separation and the nature of their relationship amongst other things. The parties’ credibility is a significant issue in this case.
The credibility of a witness and the provisions of the Evidence Act1995 (Cth) that relate to the assessment of a person’s credibility is discussed at Part 3.7 “Uniform Evidence Law” by Stephen Odgers (15th edition). At [EA 101A.90] the author noted that the term “credibility of a witness” is defined in the Dictionary thus:
‘credibility of a witness’ means the credibility of any part or all of the evidence of the witness and included the witness’ ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.’
The author noted in reliance on Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213 at 211 per Windeyer J that “matters bearing on the credibility of a witness thus include truthfulness or veracity, intelligence, bias or motive to be untruthful, opportunities of observation, reasons for recollection or belief, powers of perception and memory, any special circumstances affecting competency, prior statements consistent or inconsistent with testimony, internal inconsistencies and ambiguities in testimony and direct contradiction of testimony”.
I have taken into account the evidence which bears upon the credibility of each party in this matter including each party’s truthfulness, a party’s motive to be untruthful, reasons each party gave for their recollection or belief, prior inconsistent statements and internal inconsistencies, ambiguities and contradictory evidence and have made findings about the truthfulness and the reliability of the parties evidence.
Did the parties reconcile
The respondent contends that the parties reached a property settlement in mid – 2010. He contends that the parties were not in a de facto relationship after 2010. It was agreed that he would pay the applicant $200,000 and permit the applicant and children to live in his Suburb Z home with the respondent paying the mortgage. In addition he would continue to pay child support by private agreement of about $300 per week directly to the applicant.
The applicant agreed that she received the sum of $200,000 but denied it was provided for a by way of a property settlement though she accepted that she had instructed solicitors to draw up property consent orders in about March or April 2011. The respondent contends he was unaware that the applicant had sought legal advice.
During cross examination Counsel suggested to the applicant that in her second affidavit she stated “Mr Jacobs and I also did not discuss or agree to a property settlement together. I instructed my solicitors to discuss property settlement with Mr Jacobs by way of correspondence however nothing was ever finalised”. When asked about this statement she said “we did have a property settlement but we didn’t continue…it was never agreed”.
In her first affidavit at paragraph 56 she said “In about July 2010 Mr Jacobs and I separated for about 9 months….in that time we reached an agreement in or about March 2011 as to property settlement although we did not sign these documents to formalise or legalise this agreement”. Notwithstanding this statement, she maintained during cross examination that the parties did not reach any agreement about property. She was unable to explain why she swore in her affidavit that the parties had reached an agreement when she was now saying they had not. She said there was no clear settlement. She said she did not know if paragraph 56 of her affidavit was wrong or not.
It was suggested to her that she deposed in her affidavit “We agreed Mr Jacobs would give me $200,000 and we would each retain the assets and liabilities in our own names”. Notwithstanding this evidence she said she never agreed with him (about) anything. She said “He never discussed anything with me. All I know is there was a property settlement that was done and wasn’t signed for and he knew from the lawyer that….”
She agreed that she had instructed a lawyer to draw up a property settlement (Exhibit R5). She accepted that the documents contained in Exhibit R5 were never provided to the husband. She agreed that in 2010 or 2011 she had emailed Nita Stratton – Funk, solicitor and asked her to prepare documents. She said when she and the respondent got back together she told her not to worry because “we had got back together”. She agreed that the draft agreement was for the respondent to pay her $200,000 and that is what the documents state. When cross examined about the documents she was asked about the date given as the date the parties commenced living together being 2003. She said that date was wrong. She said she didn’t provide the date for the commencement of the relationship but accepted that she was the only person who was communicating with the solicitor. She was unable to explain why an incorrect date was provided. I do not accept her evidence and find that the applicant provided to her solicitor the date of 2003 as the date the parties commenced cohabitation which she knew to be untrue. She asserted in her affidavit that this was the date the parties had met.
Though the date of separation stated in the document is July 2010 the applicant denied that she was suggesting to the court that the parties separated on that date. She said she instructed the solicitor not to go to court. She said she had never seen the document before though she accepted it had been disclosed by her solicitors. I do not accept her evidence that she had never seen the document before. She subsequently agreed that the parties had “split up” by July 2010.
She agreed that the respondent paid her $200,000. She did not accept that he paid her $150,000. She said he was in the bank with her at the time and they opened up an account for the children. It was suggested that $80,000 was paid towards a mortgage on a unit in her name. She said it was her recollection that $120,000 was deposited into an account. She said the account was in the children’s names “half each”. It was suggested that this transaction occurred in about August 2012. She said the parties had reconciled by then. It was put to the witness that in 2013 the respondent paid her a further $50,000. She denied that but accepted that he had given her $200,000. She denied the $200,000 was in relation to the parties’ property settlement. She said he gave her the money even though they reconciled in April 2011. She agreed she didn’t give him the money back. I do not accept the applicant’s evidence. I find that the respondent gave the applicant $200,000 by way of property settlement though the settlement was not formalised by way of court orders.
Respondent’s evidence
During cross examination the respondent said that by 2010 the parties’ de facto relationship had ended and he had been in a number of relationships since that time. He said “he finally broke free from the relationship in 2010 but I had been trying since 2009”. He agreed that in 2009 the applicant returned to the Country N for some months with X and returned to Australia in late 2009. It was put to the respondent that the applicant returned to Australia because he wanted to continue their relationship. He said “she’s allowed to say whatever she likes whether it’s true or not”. It was suggested that he told the applicant he wanted to continue to have a relationship with her. He said “that’s not true. I wanted to see my son”. He agreed that when she returned from the Country N the applicant moved into his property at Suburb Z. He said she did that as that was X’s home and she was pregnant with Y. He denied that he allowed her to move into his home because they were in a relationship. He said in 2009 they were discussing their relationship. He agreed to support the applicant financially and agreed that she could live in the Suburb Z property.
In late 2009 the respondent commenced a relationship with Ms G (known as Ms G).[5] He denied reconciling or re-establishing a relationship with the applicant on her return from the Country N. In 2010 he obtained work at Employer CC in Suburb DD in Western Australia. In 2010 he agreed to pay the applicant $200,000 and that she would live in the house as he had secured work in Western Australia. He gave evidence that he would return to Brisbane when he could to spend time with X. He said the applicant discovered he was in a relationship with another woman and was very angry about that. He said his relationship with Ms G became difficult because the applicant “was giving both of them a lot of abuse and she (Ms G) wanted to escape that situation”. He said in about April 2010 he and Ms G separated.
[5] In the judgment Ms G is referred to as “Ms G.”
He agreed that after he and Ms G separated he invited the wife to visit him in Perth. He said she threatened to come to Perth so he asked her to bring X. He agreed he arranged separate accommodation for the wife, himself and X to spend time. He said she stayed in Perth for a few weeks and then returned to Brisbane. He said he did this as his wife was pregnant and at that time Ms G did not want to continue the relationship. He denied the parties reconciled.
The applicant said the respondent moved to Perth as a fly in fly out worker in 2010. She argued that the respondent “broke down” and told her he had been seeing another woman but he wanted to be with the applicant 100%. She said he asked her to move to Perth to live with him. She claimed that she and X lived him from March to early April 2010 in Perth in a rental property she had arranged. The respondent disputed this.
The parties’ second child Y was born in 2010.
The respondent contends that he lived in Brisbane shortly after Y’s birth for a few months and was then transferred by his employer, Employer EE to Perth as a supervisor. I accept that evidence.
The respondent said he continued to work in Western Australia. When he returned to Brisbane he stayed with his brother or his parents. He denied that from late 2011 he stayed only with the wife and they reconciled their relationship. He disputed the statements made by the applicant’s niece Ms B that after late 2011 he slept in the main bedroom of the home with the applicant. He said on the odd occasion he may have had breakfast at the home. He agreed they had dinner at the applicant’s relatives’ home on occasion. He agreed he had dinner at the home of a friend (Mr M) of the applicant. He said that happened twice in 10 years. He agreed that on one occasion in 10 years he took the children on a 4 wheel drive trip and agreed that the applicant accompanied him. He said “she always had to as that was her strict rule”. He agreed on one occasion he, the applicant, the children and his parents went camping on the beach in 2016. He said his parents had a good relationship with the applicant and insisted on coming on that trip.
The respondent said that he and Ms G lived as a de facto partners from late 2010 in Perth until they separated in 2016. In December 2010 Ms G obtained a restraining order against the applicant and a final order was made in February 2011.He said the applicant continued to be extremely angry about his relationship with Ms G. The respondent’s partner Ms G corroborated his evidence that during this period the parties lived in a genuine de facto relationship. Her evidence was unchallenged.
The respondent said in 2011 he was working in Perth four weeks on and one week off. He lived with Ms G in Perth and returned to Brisbane to spend time with the children. He stayed with his brother or parents when in Brisbane. His brother’s evidence corroborated this and was not challenged.
The respondent denied the applicant’s contention that the parties reconciled in September or October 2011 and then continued to live in a de facto relationship where the respondent would live with her in the Suburb Z home on his return to Brisbane.
It is common ground that in November 2011 the applicant’s nephew and two nieces were abandoned by their father and the applicant took over their care and the children lived with the applicant and the parties’ children in the Suburb Z home.
In 2012 the applicant’s father transferred a property he owned to the applicant. The respondent said he was not aware the applicant was the owner of her father’s property until she told him in 2015.
During cross examination the respondent said that in about March or April 2011 the parties settled their property and it was agreed he would give the applicant $200,000. In August 2012 he paid the applicant $150,000 and she discharged a mortgage of $80,000 on her unit. $70,000 was placed into accounts for the children. The respondent said the applicant then had two unencumbered properties that she rented out while living in the Suburb Z property “rent free”. He continued to pay child support of $300 per week. When visiting Brisbane he lived with his brother and paid board of $100 per week. I accept his evidence.
In 2013 the respondent paid the balance of $50,000 to the applicant. He said she deposited those funds into account for the children.
In early 2014 the respondent took a short term contract in Town FF, Queensland. The job entailed three weeks on and one week off. The respondent said his relationship with Ms G who was based in Perth continued and he spent time in either Brisbane with the children or with his partner in Perth. The respondent said after the short contract he returned to Perth as a tradesman for Employer GG.
In late 2014 the respondent purchased an investment property at Suburb HH in his sole name for $525,000 with a mortgage of $367,500 and used savings of $157,500. He rented out that property. He did not discuss this purchase with the applicant.
He agreed that the parties each set up a property trust on 24 August 2015 in their own names. He said they advised the promoters of the Trust that they were not in a relationship together and the Trusts were set up in each party’s sole name.
In 2015 the applicant purchased a property at Suburb JJ. The respondent deposed that the applicant told him she was unable to obtain finance and she needed his name on the title deed. He said he agreed to assist the applicant to obtain finance for the property at Suburb JJ. He said he agreed to pay $1244.34 into her account in accordance with the March 2015 child support assessment. He said he did that so that the applicant had proof of sufficient income to obtain finance. He believed he had a 1% interest registered on the title of that property according to what he had been told by the applicant. The applicant denied that he held a 1% interest in that property. She denied that she received $1244.34 in child support from the respondent. She denied that she ever received child support from him. She said the respondent was simply helping her out to buy the property.
In early 2016 the respondent’s relationship with Ms G ended and she returned to Country KK. In late 2016 the respondent worked 26 days in Perth and had 9 days off. He stayed with his brother or parents on his return to Brisbane. He agreed that he spent more time with the children but denied the parties reconciled. He agreed he stayed overnight with the applicant on occasion however he claimed that he was under pressure from her to do so. He agreed that between 2010 and 2016 he did not list Ms G as his de facto partner on his tax returns. He denied the applicant ever assisted him to complete his tax returns. He said his mail went to her home and she would open it without first asking him.
The respondent said until his brother sold his home in 2017 he almost exclusively stayed overnight at his brother’s home when visiting Brisbane. His brother filed an affidavit that corroborates this. The respondent contends he otherwise stayed overnight at his parents’ home. His mother also corroborates this.
In April 2017 the respondent purchased a property in his sole name at Suburb LL for $760,000 borrowing $610,000 and using his savings of $150,000 for the balance. He deposed that the applicant had no involvement at all in the purchase. He said he requested the applicant move out of his Suburb Z home so that he could fix it up and rent it out however she refused to move out. Around this time he discovered that the applicant had been the victim of a scam and had lost money. He agreed that he paid off her credit card of $10,000 and gave her $8000 for rates on her properties. He said she agreed to repay him however she repaid only $1500. According to the applicant she lost $420,000 including the $120,000 deposited in the children’s bank accounts.
In November 2017 the respondent allowed the applicant and the children to move into the Suburb LL property while he completed renovations on the Suburb Z property. She remains in that property.
In 2018 the respondent continued to work in Perth four weeks on and one week off and on his return to Brisbane to spend time with the children he lived in the Suburb Z property. He said the applicant refused to leave the Suburb LL property.
In April 2018 the respondent commenced a relationship with the applicant’s sister in law Ms L. He said when the applicant discovered this she restricted his time with the children.
In January 2019 the respondent was made redundant and returned to live in Brisbane permanently. He did not work between early 2019 and July 2019 and was unable to make any child support payments.
The respondent said he was contacted by the Child Support Agency and advised that the applicant had cancelled their private child support agreement and he was now liable to pay child support as assessed. The Agency raised a debt of $9000. At the time of filing his affidavit he had repaid the debt.
During cross examination the respondent denied that the parties shared the same bed in the Suburb Z property. He said they lived separately and apart. He denied that the parties had a regular sexual relationship but agreed they had sex on a few occasions in 2016 and 2017 always instigated by the respondent. The respondent denied the Suburb Z property was “our home.” He said at most he spent three days in Brisbane every five weeks and stayed with his brother for the majority of time.
The respondent agreed the applicant on occasion collected him from the airport and dropped him off at her insistence. He said the children were always excited to see him. He agreed she would cook him a meal and invite him to stay for dinner. She would say to the children “you want Daddy to stay for dinner don’t you?” He said once the children were in bed he would leave. He agreed he did attend the home for breakfast on occasion at the invitation of the applicant and would then take the children to school.
The respondent denied that he spent family holidays together with the applicant save for one occasion when his parents came along. He denied that he told her after 2010 that he loved her. He said she would get angry with him when he told her that he did not love her and respond “you are only here for the kids” and he would agree. He said she refused to allow him to spend any time alone with the children.
During cross examination the respondent said spent several Christmas’ in Western Australia but if he was in Brisbane he would celebrate Christmas with his children. He thought that happened twice in 10 years. He said on the rare occasion he visited friends with the applicant and on other rare occasions he was at the home for breakfast usually because the children had asked him to be there. He said he spent maybe four days in Brisbane every five weeks, sometimes none, sometimes two days. He said if was in Brisbane he had no choice but to take the applicant with him when he spent time with the children as “she was very suspicious that I would take the children to see someone she didn’t want them to see”. He said he would welcome looking after the children if the applicant went out at night but he could not remember that ever happening. He did not recall any occasion when the applicant travelled to Melbourne and he looked after the children in her absence.
The respondent denied he knew Ms D the applicant’s neighbour and said she was not a friend of his. He accepted that a person of that name lived a few doors down from the wife. He denied being at the Suburb Z home “most days” when she visited. He said “I’ve never seen the woman and I’ve never seen her in my house”. He said her evidence was untrue and he was adamant that she had never been in his house at any time he was there. He denied he ever said in reference to the applicant “I got the best of the best”.
He said he did not know Ms C. He thought he met her about two years ago. He said she was “just a mum at school and I would drop the kids off.” He said he had nothing to do with her. He agreed on occasion he and the applicant both dropped the children at school and agreed he had dropped the children off. He said he would get up early and drive to the house, have breakfast and take the children to school. He said the applicant would prompt the children and say “you want Daddy to come for breakfast don’t you”. He denied he discussed going on dates with the applicant in front of Ms C in 2014. He said that was not true. He denied Ms C visited the applicant’s home after the children went to bed and he would be there and they would have a chat together. He denied Ms C’s assertion that she saw him regularly as school between 2014 and 2018. He said she’s been asked to say that as she’s friends with his former de facto wife.
He said he could not recall any argument between him and the applicant in January 2018. He said he was invited to the house to pick up the children and take them to school and when he reached the home the applicant was demanding that he tell the children about his relationship with Ms L. He told her that was an adult issue and the children should not be involved. He said the applicant “got physical with me and tried to prevent him leaving the house”.
During cross examination when asked about his relationship with Ms G he said they were in a relationship between mid - 2010 and 2016. They shared a home in Western Australia and she would occasionally accompany him to Brisbane. He said when they both came to Brisbane they did not stay with his parents as his mother did not approve of Ms G. At the end of 2016 his relationship with Ms G ended and he stayed at the Suburb Z property as the wife and children had moved to the Suburb LL property. He agreed that the applicant put him under pressure to stay in the home in Suburb LL home. He only did that a few times. He agreed that in 2017 he engaged in sexual relations “sporadically” with the applicant. He said she would beg him to stay and occasionally he did. He said he didn’t want to have a sexual relationship with her but “she was always pushing me”. She would say to him “because you’re not with Ms G any more there’s no reason why we can’t just be friends with benefits”. He said he didn’t want the benefits he wanted to co-parent the children. He denied there were many occasions he slept at the applicant’s home and even less occasion when they had sex.
He agreed that the applicant moved into his Suburb LL home. He said he didn’t want her to but she kept pushing for it and actually moved herself in there while he was away at work. He told her not to unpack her stuff. He said this was a temporary arrangement. He thought he would use the opportunity to fix up the Suburb Z home as that was the children’s home but she refused to leave the Suburb LL property. He said around this time he discovered that the applicant had been the victim of a scam and lost money. He agreed that he paid her credit card off and paid outstanding council rates. He said she was a mess threatening to kill herself and that was the only way he knew how to help her. He said he paid $18,000 on her behalf. He did it for the children as they needed their mother. He agreed he continued to send the applicant $300 per week. He agreed that the new property would have rented for $750 per week. He said his mortgage applicant’s mental health and the impact on the children if their mother was unable to care for them.
The respondent denied that when he was in Western Australia that he spoke with the applicant each day and sent messages to her each day. No evidence of any messages was produced by the applicant He said he spoke with the children once a week when in Perth. He said he was aware that the applicant was on various dating sites.
During cross examination the husband agreed that he had spent time with the children since the parties separated and agreed that he obtained parenting orders from the Family Court in November 2019. He agreed it took 10 years to formalise his arrangements for the children.
I found the respondent to be a truthful witness who conceded that his recollection was poor given the length of time it had been since being in a relationship with the applicant. I accept that he did his best to give an accurate account of events.
Respondent’s mother’s evidence
The respondent’s mother said that when he returned to Brisbane the respondent would stay in her home. She said she and her partner would travel around for 8 weeks a year and he would stay at her home then. She said he would arrive late at night after having dinner and bathing the children “as that is what his wife insisted he do”. She said he would come in very early and go straight to the children’s home. When he brought the children to her home the applicant would accompany him. She said “she (the children’s mother) needed to be with them all the time. That was her rule”. She denied that her son and the applicant were a family unit. She said “I knew they weren’t together but I knew he wanted to see his children”. She said she would invite the applicant to barbecues and functions “because she didn’t want any angst”. She agreed that she had never met Ms G and agreed that she did not want to meet her because she didn’t want any aggravation with the applicant as she wanted to see her grandchildren and wanted to maintain a friendly relationship with their mother and “she didn’t want to add anything to the mix”. She said the applicant was furious that her son was in another relationship and furious about Ms G. She didn’t like him being with Ms G.
She agreed that she and her husband lent the applicant some money. She said the applicant told her she had a property that needed to be fixed before she could rent it out and it was going to cost her $45,000. She had another property that was on the market. The applicant told her that she would repay the loan once the other house was sold. She said she hasn’t paid the money back. She said she was contacted by the applicant around this time who was threatening to kill herself. The applicant told her that she had lost a lot of money through a scam and the paternal grandmother said she gave her financial advice regarding how to get out of her difficulties though she didn’t accept that advice. She said they were very worried about the applicant’s mental health at the time and the impact that was having on the children. She said the applicant was adamant that the respondent could not have the children without her being present. If he came back and he wanted the children on his own it wouldn’t happen. She would not allow the children to be with any of us unless she was there. I accept the evidence of the paternal grandmother and found her to be a frank witness if not a little verbose.
Applicant’s evidence
During cross examination the applicant was asked questions about a financial statement she swore on 28 October 2019. She agreed that she owned three properties one a MM Street, Suburb HH, another at NN Street, Suburb OO and another at PP Street, Suburb QQ. She said there were three mortgages secured against those properties. She gave her occupation as a carer.
She said she paid no expenses for the Suburb LL property but later said she paid the utilities for that property. She also paid for utilities when she lived in the Suburb Z property. She agreed that the respondent paid the mortgages on both properties.
The applicant’s evidence regarding the parties’ separation was confusing. She said she returned from the Country N in 2009 and moved back into the Suburb Z property. It was her recollection that in early 2010 the respondent moved to Perth to work. In her view the parties had a long distance relationship. She said a week or two later he told her he was in a relationship with another woman but although he had been seeing another woman “he wanted to be with me 100% and asked me to move to Perth to live with him”. She said she and X lived with the respondent from March to early April 2010 in a rental property in Perth that he had arranged for her. Both parties returned to Brisbane to attend a friend’s wedding and then they lived together in the Suburb Z home. The respondent denies they reconciled. Notwithstanding the applicant’s evidence Counsel for the applicant sought declarations that the parties were in a de facto relationship from 2006 until 2018 save for the period 2009 to 2011 when they were separated. I do not accept the applicant’s assertion that the parties reconciled between July 2009 and 2011.
In her affidavit the applicant deposed at paragraph 23 that “I contacted Centrelink and began to receive the single parent’s pension. Mr Jacobs began to deposit $300 each week into my bank account which he said was for child support”. She said this was in 2009. She claimed she signed only one Centrelink form and then did not sign any further forms nor update Centrelink regarding any change in her circumstances including not advising Centrelink that the parties had reconciled. She received the single parent’s payment up until 2012. I accept she was entitled to receive those payments and find that she was not in a de facto relationship with the respondent at least until 2011.
Y was born in 2010. The applicant deposed that “the parties separated in July 2010 and the respondent moved out of the Suburb Z property into his brother’s home at Suburb AA”. She said “our separation seemed permanent so I contacted solicitors to help negotiate a final property settlement. We did reach agreement however we did not sign any documents to formalise or legalise the agreement”. The respondent contends he moved out of the home in mid 2009 and by early 2010 was living in Perth. I accept his evidence.
The applicant said she went to Melbourne and took over custody of her nieces and nephews and the parties reconciled “late 2011 or early 2012”. She was asked whether they reconciled in September or October 2011. She answered “I don’t really know”. She was asked whether the separated in April 2011 or “was that too early”. She said “it’s not April 2011 definitely not”. She said it was possibly September or October 2011.
It was suggested to her that in her affidavit at paragraph 58 she said “… we reconciled in April 2011”. She said that was wrong. When asked why she put that in her affidavit she said “because I couldn’t remember at the time”. She said in the same affidavit at paragraph 28 “they reconciled in September or October 2011.” In answer to a question why she gave inconsistent evidence she said “because I was always in contact with Mr Jacobs the whole time”. She agreed she understood the meaning of the word “reconcile”. Counsel suggested to her that she never reconciled with the husband. She said “well I thought we did…in late 2011”.
Counsel suggested that the applicant contacted Centrelink again when her nieces and nephews came to live with her in November 2011. She agreed and said she initially received payments with respect to four children in her care. She agreed she lost her single parenting payment when she declared assets worth $458,000. During cross examination she shown Centrelink documents. She agreed that she regularly updated Centrelink regarding any changes. On one occasion, one of the children in her care left so she advised Centrelink and her payment was reduced to a payment for three children. She agreed that at no time did she advise Centrelink she had re-established her relationship with the respondent and that they were living as de facto partners. She said that was because Mr Jacobs was “coming and going in my life”. She said she never thought about advising Centrelink that the parties were living in a de facto relationship after reconciling. It was suggested that was because it was untrue. She denied that.
It was put to the applicant that the only reason her Centrelink payments stopped was because she inherited property from her father. She agreed and said she advised Centrelink about that. She said she only contacted Centrelink on two occasions once when the parties separated and once when she received an inheritance. Counsel for the respondent asked her “whether she agreed that she received Centrelink payments when she shouldn’t have because the parties had reconciled”. She responded that she misrepresented herself to Centrelink as she was in a de facto relationship with the respondent whilst receiving a single parent payment from Centrelink. I reject that evidence.
At one point the applicant agreed that the respondent had been paying child support since 12 May 2009 pursuant to a child support agreement. Her evidence regarding child support was inconsistent. She agreed that at no time did she contact child support to advise them that the parties had reconciled. She was shown Child Support documents (Exhibit R1) and agreed that she had received those documents. She was asked why she stated in her affidavit “I again state that a private child support agreement was not reached between Mr Jacobs and I as Mr Jacobs simply started to deposit funds into my bank account with a reference of child support”. In paragraph 23 of her affidavit she said “Mr Jacobs began to deposit $300 each week into my bank account which he said was for child support”. She denied that she ever received child support from the respondent for the children.
She agreed that the child support documents indicated accurately each parties’ taxable income for relevant years and indicated accurately that the children were in her care for 100% of the time. I found the applicant’s evidence that she did not receive $300 per week for child support patently false.
The applicant agreed that in addition to payments of $300 per week, she and the children lived in the respondent’s Suburb Z property “rent free”. She agreed he paid the mortgage and continued to pay $300 per week until March 2015 when his payments increased to $1244.34 per fortnight. She accepted that he commenced paying her $1244.34 fortnightly and that figure was the precise amount reflected in the child support assessment. She denied she received those payments as child support. She said the respondent agreed to pay her those amounts so that she could obtain funding for the purchase of the Suburb JJ property. She agreed that she continued to receive those payments until 16 March 2017 and after that his payments reverted back to $300 per week. She denied the payments were increased child support for a period of 12 months. When asked why she stated previously that she had “never received child support for the children” she replied “I don’t know I can’t remember”. The applicant was asked to look at her bank statements annexed to her affidavit filed on 17 March 2020 and asked to identify the entries of $1284.82 each fortnight. She claimed these payments were for buying a house. She said “he’s paying me that to buy a house because I was using that as an income so I can buy a house. And that’s why he was paying me that amount”. She was asked why she had previously said the husband never paid her that amount pursuant to a child support assessment. She said he was “helping her out”. She was asked why she had made an untrue statement regarding not being paid child support. She said “I don’t remember what was happening unless it was shown to me”.
The applicant denied the parties were separated between March 2015 and March 2017 and denied that she received child support as assessed. She said “we were together and I was using it to buy a house”. She was asked whether she was deliberately misleading the Child Support Agency. She said “well that’s what is comes down to because I was together with Mr Jacobs the whole time. I was using that statement to buy a house, to buy Suburb JJ which he wanted to share…” I do not accept that the applicant was deliberately misleading the Child Support Agency though I formed the view that she would have the Court accept that. I formed the view that she was prepared to lie in an attempt to convince the Court that the parties had not separated. I infer that she was financially motivated to lie about receiving child support payments in an attempt to demonstrate that the parties were in an ongoing de facto relationship. I found the applicant was being deliberately untruthful on this issue. I accept that the respondent paid child support for the children via a private agreement of $300 per week from mid - 2009 and for the period March 2015 to March 2017 of $1244.34 as assessed.
Counsel asked the applicant to confirm that she was the person who provided the respondent’s accountant with information about his tax affairs as deposed to in her affidavit. She agreed. It was suggested that she would not have told the accountant that the respondent was single. She said she didn’t tell the accountant that but simply gave them the paperwork. She was shown documents at Exhibit R4. She was asked to confirm that the respondent’s tax returns did not indicate that she was in a de facto relationship with the respondent after 2010. She said was not aware that she was not listed as his de facto partner on his tax returns though she said she prepared all the paperwork for his tax returns for his accountant. She accepted that the documents did not refer to her as the respondent’s de facto partner. She claimed that she was unaware that she was required to advise the Australian Taxation Office (“ATO”) that she was his de facto partner.
She was asked about the entry on the respondent’s tax return “child support paid $43,324”. She said that this was the first time she had seen that entry. When asked about her evidence that she prepared the respondent’s tax returns she claimed that she simply gave the accountant his group certificate, details of his rental property and said “I know nothing about child support”. Counsel suggested to her that she was being untruthful about preparing the respondent’s tax returns and suggested that she had absolutely no dealings with the respondent’s finances after 2010. She denied that. When it was suggested that she produced no documents evidencing that she emailed the respondent’s accountant any documents or information for the preparation of his tax returns she said “not email just phone call”. Counsel suggested to her that her earlier evidence was that she was the one who provided the documents. She said she went to the accountant and dropped off documents and the respondent came with her most of those times. Counsel suggested that never happened. She disagreed. She blamed her accountant for not telling the ATO that she and the respondent were continuing in a de facto relationship. I do not accept the applicant’s evidence on this issue. I formed the view that she was prepared to say anything to convince the Court that the parties’ de facto relationship was ongoing.
The applicant was shown Exhibit R3 being a copy of her tax return for the year ending June 2009. The document had included on it the respondent’s name as her spouse for the period 1 July 2008 to 15 April 2009. She agreed that she had advised the ATO that the parties had separated on 15 April 2009. Previously she had given evidence that she was unaware that she needed to advise the ATO whether she was separated or whether she was in a de facto relationship. Counsel asked why she had previously said she had not told the ATO that she and the respondent had separated. She responded “well I guess I did. It’s written here”. She agreed that she told the ATO they separated in April 2009. She blamed her accountant for failing to advise the ATO that she and the respondent were continuing in a de facto relationship sometime after 2010.
Counsel suggested that in each subsequent year that she filed her tax return she entered “No” in response to the question “was she in a de facto relationship” on her tax returns. She said “I didn’t do my tax returns the accountant did them”. She agreed there was a section where she was required to sign the tax return stating the information was true and correct. She agreed that she had signed her tax returns.
The applicant agreed that in her tax returns she did not claim any interest in any of the respondent’s properties nor did she make any reference to those properties in her tax return. She agreed that she claimed $45,485 for underpinning of one of her properties in her 2016 tax return. She agreed that the respondent’s parents had loaned her $45,000. It was suggested that the money was a loan and that she had agreed to repay the amount once she sold one of her properties. She said “I intend to pay them back but she told me I don’t need to pay it back”. Counsel suggested that she did not declare that she was in a de facto relationship with the respondent after 2010 because that was not true and she was not in any de facto relationship with him. She said “Yes I was”. I reject her evidence.
Counsel asked the applicant questions about Ms G and suggested that the respondent was in a relationship with Ms G for six years. She denied that she knew the respondent and Ms G were in a relationship between 2010 and 2016. She said “he wasn’t in a relationship with her because he was in a relationship with me”. She agreed that a restraining order had been taken out against her by Ms G in about 2011. She said she contacted Ms G to tell her that the respondent wasn’t coming to see her. She denied contacting her about any photos she obtained or had found on the respondent’s email. She denied she threatened to send those photos to the place Ms G worked. She said she had spoken Ms G once to tell her that the respondent was not coming to see her on Boxing Day.
She denied that she didn’t let the children spend time with the respondent alone because she didn’t want the children to meet Ms G. She said she didn’t know whether the respondent spent any time with the children alone after 2010. She denied that after 2010 the reason he came to the home was to spend time with the children.
The applicant was cross examined about the evidence contained in the affidavit of Ms L. She denied she told her sister in law that her relationship was over because the respondent was in a relationship with another woman and denied she told her that the respondent gave her $200,000 as a property settlement. She said the respondent gave her that money to put into the children’s accounts. She denied she told Ms L that she had lost a lot of money gambling but said she told her she lost the money in online trading. She denied she told Ms L that the respondent was paying her $300 per week in child support. It was suggested that Ms L asked her why he was doing that if they were separated and she told her “because he doesn’t deserve to be happy he deserves to be miserable he’s a cold hearted arsehole”. She denied that.
Counsel suggested to the applicant that she had not produced any evidence of any communication (apart from a few emails) to support her assertion that when the respondent was in Perth their relationship continued. She said he called her on the phone practically every night. She agreed she had not stated that in any of her affidavits.
It was suggested to her that the respondent allowed her to remain in Suburb Z home so that the children would continue to have a home there. Counsel suggested that an email (Exhibit 3) supported that conclusion and the respondent was providing the home as he wanted to do what was best for his children. She denied he told her that or that was his intention.
The applicant denied that she did not consult the respondent when she purchased a property, she said she did. With respect to the applicant falling victim to a scam she agreed that the respondent gave her money but said she received $13,000 and not $18,000. She agreed he paid off her credit card. She said she was upset over losing the money but denied she was suicidal. She said she told the respondent about her involvement in the scam. She claimed she told him she was doing some online trading and he told her to be careful. She would show him what she was doing when he was at her home. The respondent deposed that he knew nothing about how she lost money. He was not told but accepted that she was extremely upset about it to the point where he was concerned she was suicidal. I accept the respondent’s evidence.
She denied that the respondent allowed her and the children to live in the Suburb LL property “until she got on her feet from the scam”. She denied her occupation of that property was to be temporary while he fixed up the Suburb Z property. She denied he asked her to move out of the Suburb LL property. She said “he only did that in 2018”. She said it was Christmas Eve and he told everyone to get out of his house. When asked how long it would take her to move out of the Suburb LL property should the Court make that order she said she could move out in 30 days.
At one point in her evidence the applicant claimed that the respondent had a child support debt. She agreed that in December 2018 he lost his job however she said did not find out about that until March 2019. She agreed she contacted the Child Support Agency in early 2019 and they raised a debt against him. She said he was paying off the debt. It is common ground that at the time of the trial that debt had been discharged. She agreed he continued to pay child support as assessed. She denied he paid child support before 2019.
She denied that when the respondent would come around to spend time with the children she would beg him to stay. She agreed that she had sex with the respondent in 2016 and 2017. She denied this was only on a few occasions she said “every time he would come back we would engage in sex”. She denied the only time they were together was when the children were present. She claimed that he would take her out to lunch. She agreed she had not stated that in any of her affidavits. She denied that she opened his mail without his permission. She said he would ring her and ask her to open the mail. She claimed that she paid his bills and he would reimburse her. Again she agreed she had not stated that in her affidavits. I do not accept her evidence on these issues and where her evidence departs from the respondent’s evidence I prefer his evidence.
Conclusion
In Lynam v DG of Social Security (1983) 52 ALR 128 Fitzgerald J said at [131] (in relation to the question whether the parties were living together as respondent and applicant on a bona fide domestic basis):
“Each element of a relationship draws it colour and its significance from the other elements some of which may point in one direction and some it 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 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 of the opposite sex meets the statutory test.”
I have carefully assessed the evidence of each party. I found the applicant’s evidence in large part untruthful. I refer to my findings above. I accept that the parties were in a genuine de facto relationship for about 18 months between early 2006 and early 2008 separating for about 6 months in 2007. I accept that the parties separated in December 2008 when the applicant moved into her father’s home. I accept that the parties may have had a short reconciliation between December 2008 and April 2009 but I am unable to be more precise. The reason for this is because the applicant deposed in her tax return that she had separated from the respondent in April 2009. I accept that the respondent moved out of the Suburb Z home in July 2009. I accept that the parties lived separately and apart between July and October 2009 with the applicant and X living in the Country N. By late 2009 the respondent had formed a relationship with another woman.
It was submitted by the applicant’s Counsel that the parties were separated between 2009 and 2011. I accept that evidence. I am not satisfied that the parties reconciled at any time either after July 2009 or after April 2011.
My decision is informed by the evidence set out above in particular the payment of the respondent of child support of $300 per week from about May 2009. I accept that the respondent allowed the applicant and the children to live in his Suburb Z home and he paid the mortgage. I do not accept this was anything other than him providing the applicant with additional assistance and to benefit the children. He was living and working in Perth at the time and in a relationship with another woman.
The applicant does not deny the receipt of $200,000 in funds from the respondent between 2011 and 2012. She instructed a solicitor to draw up consent property orders in similar terms but now denies the characterisation of those funds as a “property settlement”. She received a single parent’s pension from 2009 until 2012 for which she was entitled to receive.
I am satisfied that the parties kept their financial interests separate from at least 2011 (if not before). I accept that the respondent financially assisted the applicant at her request to purchase a property and paid child support as assessed rather than as agreed. Otherwise the parties kept their property interests separate and apart.
I accept that both the respondent and his mother assisted the applicant financially when she found herself in financial difficulty due to a scam. The motivation for doing so was so that the applicant would maintain sound mental health through her difficulties such that there would be no negative impact on the children who were in her full time care.
I do not accept that at all times the applicant was the primary carer for the children. I do not accept that the time the respondent spent with the children in the applicant’s home indicated that he and the applicant were in a continuing de facto relationship. I accept his evidence that until 2015 he would visit the home to see the children including at breakfast time and sometimes take the children to school. I accept his evidence that the applicant would not allow him to spend any time with the children alone. His mother’s evidence corroborates this. I accept the evidence of his mother and brother that when the respondent visited Brisbane for a few days every month he slept at his brother’s home and paid board or at this mother’s home. He slept at his brother’s home until mid - 2017 when that property was sold.
I accept the respondent’s evidence regarding the parties’ sexual relationship following his separation with Ms G in 2016. I accept that on a few occasions the parties had sexual relations but do not accept they had reconciled or re-partnered. I accept that when the respondent stayed overnight it was primarily to benefit the children.
I am satisfied that the documentary evidence tendered tends to support a conclusion that the parties were not in a genuine de facto relationship after about July 2009.
Having regard to the whole of the evidence the applicant has failed to prove to the requisite degree that the parties reconciled at any time after either July 2009 or April 2011. I make declarations accordingly.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Tonkin
Date: 13 August 2020
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