Emer & Caris
[2024] FedCFamC1F 251
•17 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Emer & Caris [2024] FedCFamC1F 251
File number: MLC 9665 of 2022 Judgment of: STRUM J Date of judgment: 17 April 2024 Catchwords: FAMILY LAW – DE FACTO RELATIONSHIPS – Threshold hearing to determine the existence of a de facto relationship – Where the respondent seeks a declaration that the parties were in a de facto relationship – Where the applicant seeks a declaration that the parties where not in a de facto relationship – Where the applicant alleges that the parties shared a friendship which evolved into a sexual relationship, but did not meet the requirements of the definition in s 4AA of the Family Law Act 1975 (Cth) (“Act”) – Where the respondent alleges that the parties’ relationship included friendship and a sexual relationship as well as other elements, such that it constituted a de facto relationship – Discussion of factors in s 4AA(2) – Adverse findings of credit in relation to the respondent and her witnesses – Finding that parties were not in a de facto relationship. Legislation: Acts Interpretation Act 1901 (Cth) s 13(1)
Evidence Act 1995 (Cth) 140
Family Law Act 1975 (Cth) Pt VIIIAB, s 4AA, 60 EA, 90RB, 90RD, 90SB, 90SM
Migration Act 1958 (Cth) s 5CB(2)
Cases cited: Chapman v. Chapman [1954] AC 429; [1954] UKHL 1
Crabtree v Crabtree (1963) 5 FLR 307
Fairbairn v Radecki (2022) 275 CLR 400; [2022] HCA 18
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd (1984) 54 ALR 155; [1983] 3 NSWLR 378
Jenkins & Anor & Cowper [2015] FCCA 357
Jonah & White (2012) FLC 93-522; [2012] FamCAFC 200
Lynam v Director-General of Social Security (1983) 52 ALR 128; [1983] FCA 249
Mayson & Wellard [2021] FamCAFC 115
National Union of Workers v ePharmacy Pty Ltd [2015] FWC 3819
Onslow & Onslow [2016] FamCAFC 7
Perlman v Perlman (1984) 155 CLR 474; [1984] HCA 4
Sinclair & Whittaker (2013) FLC 93-551; [2013] FamCAFC 129
SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1; [2015] FCAFC 69
Vaughan & Bele z
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Malloy, Oliver Markus, Why Men and Women Can’t Be Friends (Becker and Malloy, 2017)
Division: Division 1 First Instance Number of paragraphs: 211 Date of last submissions: 23 November 2023 Date of hearing: 10 May, 4, 5, 12 September, 26, 27 October 2023 Place: Melbourne Counsel for the Applicant: Mr Carne Solicitor for the Applicant: Sage Family Lawyers Counsel for the Respondent: Mr McCloskey Solicitor for the Respondent: RRR Lawyers ORDERS
MLC 9665 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR EMER
Applicant
AND: MS CARIS
Respondent
ORDER MADE BY:
STRUM J
DATE OF ORDER:
17 APRIL 2024
THE COURT DECLARES THAT:
1.Pursuant to s 90RD of the Family Law Act 1975 (Cth), the applicant and the respondent were never in a de facto relationship.
THE COURT ORDERS THAT:
2.The amended Initiating Application filed by the applicant on 18 April 2023 and the amended Response to Initiating Application filed by the respondent on 27 April 2023 be dismissed, save in relation to costs.
3.Any party seeking an order for costs file and serve written submissions and any material in support thereof within 14 days of the date of this order.
4.Any party opposing an order for costs file and serve written submissions and any material in response within 28 days of the date of this order.
5.Any application for costs be determined in chambers on the papers referred to in orders 3 and 4.
THE COURT CERTIFIES THAT:
6.Pursuant to r 12.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), it was reasonable to engage counsel to attend on behalf of each of the parties.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Emer & Caris has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
The German-American novelist, Oliver Markus Malloy, in his book Why Men And Women Can't Be Friends,[1] refers to an asserted old saying that “women use sex to get love, and men use love to get sex”. I do not pass comment, judicial or otherwise, as to the accuracy of either the title of the book or the adage referred to therein, other than to observe that each appears to be a generalisation, and likely an inaccurate one at that. Nevertheless, that adage may be apt in the particular circumstances of this case. The parties had a sexual relationship; the applicant contends they were only friends, with benefits of a sexual relationship, whilst the respondent contends those were but two of the manifold elements of their relationship, which she seeks be declared to have been a de facto relationship, pursuant to s 90RD of the Family Law Act 1975 (Cth) (“Act”).
[1] Malloy, Oliver Markus, Why Men and Women Can’t Be Friends (Becker and Malloy, 2017)
For the reasons that follow, I find that the parties were not in a de facto relationship and will declare accordingly.
BACKGROUND
The relatively uncontroversial facts are as follows; the controversial facts are addressed below.
The applicant was born in 1977 in Country B. He is a tradesperson by occupation. In 2001, he married his wife and he remains married to her. They have four children, born in 2003, 2006, 2008 and 2015 respectively. In 2011, the applicant arrived in Australia as a refugee. Thereafter, he visited his wife and their children in Country B on three occasions, until they arrived in Australia in late 2021. That he visited his wife in Country B, after his arrival in Australia, must be so, as it is not in contention that he is the father of the child born thereafter, in 2015.
The respondent was born in 1981 in Country B. She is a labourer by occupation. She was previously married and has three children from that marriage, born in Country C, in 2001, 2004 and 2007 respectively. In 2015, she and her children migrated to Australia, as holders of humanitarian visas.
In or about 2016, the applicant, who lived in Victoria, regularly travelled to Tasmania for work. There, he met the respondent, who was living in that State at the time, with her children. The respondent hailed from the same region in Country B as his wife. A friendship developed, which developed into a sexual relationship. Subsequently, the respondent and her children moved to Victoria.
In early 2021, the applicant entered into a contract to purchase the real property situated at D Street, Suburb E (“Suburb E property”), in the State of Victoria, for the sum of over $1,000,000, subject to a mortgage securing a bank loan for the purchase thereof. He is the sole registered proprietor of the Suburb E property.
A few months later, in or about March 2021, the respondent and her children commenced to occupy the Suburb E property, with the applicant’s consent. The circumstances in which they came to do so are in issue, as is the extent of time which the applicant spent there.
In late 2021, the applicant’s wife and children arrived in Australia. They were greeted at Melbourne Airport by the applicant, the respondent and her children.
At or about the time of his family’s arrival, the applicant brought the relationship between the respondent and him to an end.
For approximately ten days after his family’s arrival, the applicant and they lived at the Suburb E property, together with the respondent and her children. Thereafter, the applicant, his wife and their children lived, and continue to live, in rented accommodation.
In December 2021, the applicant instructed lawyers to send a letter to the respondent requesting that her children and she vacate the Suburb E property. She did not respond to the letter, nor did they vacate the property. However, in early 2022, the applicant was served with a Family Violence Interim Intervention Order, in which the respondent was named as the affected family member and he was named as the respondent in those proceedings, in the Magistrates Court of Victoria. In June 2022, a further letter, to similar effect to that sent six months earlier, was sent to the respondent, by a different firm of solicitors. Again, she did not respond, nor did her children and she vacate. They continue to live in the Suburb E property, against the applicant’s wishes. His ability to obtain vacant possession of the property depends, in part, on whether or not the respondent and he were in a de facto relationship.
On 30 August 2022, the applicant instituted these proceedings, filing an Initiating Application seeking, by way of final relief:
That the Federal Circuit and Family Court of Australia determine that the Applicant and Respondent are not de facto partners in accordance with section 60EA of the Family Law Act 1975 [sic].
Further, he sought interim orders including that, within 28 days, the respondent vacate the Suburb E property.
Both the final and the interim relief he sought were defective, in form and in substance, not least of all because s 60EA of the Act, which is to be found in Pt VII, dealing with children, defines the term “de facto partner” for the purposes of Subdivision C of Division 1 of that Part, is of no application whatsoever; however, that is not presently germane.
On 3 September 2022, the respondent filed a Response to Initiating Application relevantly seeking, by way of final relief, inter alia, that “[t]here be a just and equitable settlement of the former de facto pool of assets and liabilities”. In the circumstances, that relief too was not without its problems, as will become apparent. Notwithstanding the problematic declaration sought by the applicant, the respondent’s lawyers at the time nevertheless were thereby on notice that the applicant challenged the Court’s jurisdiction under Pt VIIIAB of the Act; however, she did not cross-apply for a declaration that the parties were in a de facto relationship.
On 9 March 2023, the applicant consented to a Final Intervention Order, without admission of the respondent’s allegations in support thereof. In part, by reason of the interim and, subsequently, final intervention orders made by the Magistrates Court of Victoria, he has been unable to secure vacant possession of the Suburb E property pending determination by this Court of whether the respondent and he were or were not in a de facto relationship.
RELIEF SOUGHT AND SUPPORTING EVIDENCE
By amended Initiating Application filed 18 April 2023, the applicant seeks a declaration pursuant to s 90RD(1) of the Act that no de facto relationship existed between the respondent and him.
By amended Response to Initiating Application filed 27 April 2023, the respondent relevantly seeks:
·declarations pursuant to s 90RD that a de facto relationship existed between the applicant and her, from late 2016 until September 2021; and
·consequent upon such declarations, an alteration of property interests pursuant to s 90SM of the Act.
In addition to their amended Initiating Application and amended Response thereto respectively, the parties relied upon their Financial Statements filed on 18 April 2023 (in the case of the applicant) and 27 April 2023 (in the case of the respondent), albeit that they were of little relevance to the matter presently in issue.
By way of evidence, the applicant relied upon his trial affidavit filed 18 April 2023 and a reply affidavit filed 2 May 2023, as well as the following affidavits:
·affidavit of Ms F filed 18 April 2023 (his wife);
·affidavit of Mr G filed 18 April 2023 (a friend and former housemate);
·affidavit of Mr H filed 18 April 2023 (a friend and former housemate);
·affidavit of Mr J filed 18 April 2023 (a friend); and
·affidavit of Mr K filed 18 April 2023 (a friend).
Of the applicant’s supporting witnesses, only Mr J was required for cross-examination. The evidence of the other witnesses was not challenged by cross-examination.
The respondent, by way of evidence, relied upon her trial affidavit filed 27 April 2023, as well as the following affidavits:
·affidavit of Mr L filed 29 November 2022 (her adult son);
·further affidavit of Mr L affirmed 7 May 2023 and filed by my leave;
·affidavit of Ms M filed 29 November 2022 (her adult daughter);
·affidavit of Ms N filed 29 November 2022 (a friend);
·affidavit of Ms P filed 29 November 2022 (a friend’s daughter);
·affidavit of Mr Q filed 27 April 2023 (her adult son’s employer in 2020-2021);
·affidavit of Mr R affirmed 8 May 2023 and filed by my leave (her adult son’s friend); and
·affidavit of Dr S affirmed 8 May 2023 and filed by my leave (general medical practitioner).
Of the respondent’s supporting witnesses, Mr L, Ms M, Ms N, Ms P and Dr S were required for cross-examination. The evidence of Mr Q and Mr R was not challenged by cross‑examination.
The parties also relied upon case outlines, filed on 5 May 2023 in the case of the applicant and on 8 May 2023 in the case of the respondent.
They also relied upon written final submissions, filed on 10 November 2023 in the case of the applicant and on 23 November 2023 in the case of the respondent. This was so, in circumstances where, as I explain further below, the s 90RD relief sought by the applicant could only be sought in response to that sought by the respondent, thereby effectively making her the applicant in the proceedings. However, in circumstances where, by reason of being the applicant, he filed his trial affidavit prior to her, and he thereafter filed a reply affidavit to hers, counsel for the parties agreed between themselves that his case would precede hers. By way of email to my chambers dated 30 November 2023, counsel for the applicant advised that he did not wish to file and serve written submissions in reply, and relied upon the submissions filed on 10 November 2023. The written final submissions were of assistance; those of the applicant moreso than those of the respondent. However, that is no reflection upon counsel for the respondent but upon the respondent’s case; as a general proposition, counsel are but advocates, to whom the proverbial “cards” are dealt, not alchemists.
In deciding this case, I have had regard to the affidavits of the parties and their witnesses, as well as to their evidence in cross-examination, and to their case outlines and written final submissions.
GENERAL OBSERVATIONS
Pursuant to s 140 of the Evidence Act 1995 (Cth), the standard of proof in this case is the balance of probabilities. That section 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.
I have read and considered the affidavits of the parties and their witnesses and do not propose to refer to every aspect thereof in these reasons. It is not necessary for a trial Judge to refer to every piece of evidence or argument presented during a trial.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said.
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.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd (1984) 54 ALR 155 at 385-386, Mahoney JA said:
It is not the duty of the judge to decide every matter which is raised in argument.
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard… Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
CREDIT
This is a case in which, both by its nature and by reason of the parties’ disparate accounts of their relationship, the issue of credit, theirs in particular, looms large. There are a number of aspects of the respondent’s evidence which give me concern regarding the accuracy and honesty of her evidence and in respect of which I make findings below. Although formally the respondent in the proceedings, it is she who seeks a declaration pursuant to s 90RD of the Act that a de facto relationship existed between the applicant and her and, accordingly, it is she who bears the burden of proof. Some of the aspects of her evidence which give me concern regarding her credit-worthiness include her evidence that the signature which purports to be hers on a “private lease agreement” (sic) by the applicant to her of the Suburb E property is not hers; that the applicant and she underwent a religious marriage ceremony; and that she fell pregnant to the applicant, which pregnancy was subsequently terminated.
Further, she was frequently non-responsive and argumentative, and tended to give answers that she wanted to give, rather than answers to the questions she was asked, or that she otherwise considered would suit her case.
In contradistinction to her, the I find the applicant to have been a credible witness. He gave evidence in cross-examination that was consistent with his affidavit evidence and, by the conclusion thereof, he had not been successfully challenged in respect of any significant aspect of his case.
I address the evidence of each of the parties’ supporting witnesses, where reasonably relevant, and make findings in relation thereto, on an issue-by-issue basis, below.
Having read the affidavits of the parties and their witnesses, listened to their evidence in cross‑examination and observed their demeanour in the course thereof, I approach the evidence of the respondent with caution and generally prefer that of the applicant where there is a conflict between them in the evidence.
LEGAL PRINCIPLES
Section 90RD(1)–(2) of the Act provides:
(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.
By its terms, the Court’s power to make a declaration pursuant to s 90RD(1), that a de facto relationship existed, or never existed, is only enlivened if a claim is made, in support of an application for an order under ss 90SE, 90SG or 90SM, or a declaration under s 90SL (which are defined as the “primary proceedings”), that such a relationship existed, for the purposes of those primary proceedings. Therefore, an application for a declaration pursuant to s 90RD(1) must be ancillary to such primary proceedings.
Section 90SE provides for maintenance applications; s 90SG provides for urgent maintenance applications; s 90SM provides for applications for alterations of property interests; and s 90SL provides for applications for declarations of interests in property. The applicant does not seek any such relief.
Accordingly, the applicant’s claim, both in his Initiating Application filed 30 August 2022, and in his amended Initiating Application filed 18 April 2023, for a declaration (in the former) that the respondent and he were not de facto partners and (in the latter) that no de facto relationship existed between the respondent and him, could not be sought by him, as stand-alone relief, in circumstances where no order under ss 90SE, 90SG or 90SM and no declaration under s 90SL is sought by him. This is conceded on his behalf.
Rather, it is the respondent who, by both her Response to Initiating Application filed 3 September 2022 and her amended Response to Initiating Application filed 27 April 2023, seeks an alteration of property interests pursuant to s 90SM. In support of such relief, in circumstances where the jurisdictional fact is disputed by the applicant, the respondent seeks (albeit by way of amended Response) a declaration that a de facto relationship existed between them.
Relief having been sought by the respondent pursuant to s 90SM (and s 90RD) of the Act, it is therefore accordingly open to the applicant to seek a declaration pursuant to s 90RD that a de facto relationship never existed between them. However, in circumstances where it is the respondent who seeks a positive declaration, in support of her primary proceedings, it is she who bears the burden of proof to establish that such a relationship existed between the applicant and her: Mayson & Wellard [2021] FamCAFC 115 at [30].
As Cronin J said in Vaughan & Bele [2011] FamCA 436 at [3], for the Court to have any power to make any orders under Pt VIIIAB (financial matters relating to de facto relationships), the applicant for such orders (in this case the respondent) must prove the existence of the de facto relationship. The respondent thereto (in this case, the applicant) does not have to disprove the allegations
Section 4AA of the Act relevantly 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).
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.
…
The first two of the criteria in s 4AA(1)(a)–(b), to determine whether or not two people are or were in a de facto relationship, are readily answerable. The parties are and were not legally married to each other (albeit that the respondent alleges, in support of her application for a declaration under s 90RD, they married under religious law), nor are they related by family, as those paragraphs require.
The gravamen of the determination, in s 4AA(1)(c), is less readily answerable, especially in this case, namely, whether “having regard to all the circumstances of their relationship, they have [or had] a relationship as a couple living together on a genuine domestic basis”. That is the third operative limb. Section 4AA(2) merely provides that “[t]hose circumstances may include any or all” (emphasis added) of the matters set out in paragraphs (a)–(i); therefore, that list of circumstances is not exhaustive. That is confirmed, if confirmation be necessary, by s 4AA(4), which provides that, in determining whether a de facto relationship exists (or existed), the court is entitled “to have regard to such matters, and to attach such weight to any matter”, as may seem appropriate to it in the circumstances of the case. Indeed, the Court is not obliged to have regard to the matters listed in s 4AA(2) at all: Onslow & Onslow [2016] FamCAFC 7 at [91]–[92]. Further, s 4AA(3) provides that no particular finding in relation to any circumstances is to be regarded as necessary in deciding whether two people have (or had) a de facto relationship. The Court must look at the composite picture, and not certain circumstances in isolation: Sinclair & Whittaker (2013) FLC 93-551 at [55], citing Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131, where Fitzgerald J, in the Federal Court, said:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point in 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 of the opposite sex meets the statutory test.
In Vaughan & Bele [2011] FamCA 436 at [5], Cronin J said:
Section 4AA of the Act provides that in relation to the existence of a de facto relationship, the Court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate in the circumstances of the case. Before listing the factors in the section to assist in working out if persons have a relationship as a couple, the legislature provided that the Court may have regard to all the circumstances of the relationship and then said that it may include any or all of those factors so listed. The list cannot therefore be seen as exhaustive.
This was confirmed by the High Court of Australia in Fairbairn v Radecki (2022) 275 CLR 400 at [28], where the plurality said:
Section 4AA(1)(c) identifies the relationship which is the concern of the Act: “a relationship as a couple living together on a genuine domestic basis”. The existence of such a relationship is determined having regard to “all the circumstances” of a relationship; significantly, those “circumstances” include any or all of the circumstances listed in s 4AA(2), and, by reason of s 4AA(3), no particular finding about any circumstance is necessary for there to be a de facto relationship. Consistently with the reality that human relationships are infinitely mutable, in determining whether a de facto relationship exists a court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate.
In relation to the factors specified in s 4(2) of the Act, it has been held that no one factor is determinative and that attempts to isolate one factor as more or less important are likely to be productive of error.
In Jonah & White (2012) FLC 93-522 at [33], the Full Court said 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”. See also Sinclair v Whittaker at [51]–[56].
This was also confirmed by the High Court in Fairbairn v Radecki at [33], where the plurality said:
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.
Similarly, the plurality said at [35] that “physical cohabitation and 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”. Indeed, in Jonah & White (2012) FLC 93-522, the Full Court said that parties living together for a small part of each week may be sufficient.
In support of this proposition, the plurality in Fairbairn v Radecki referred with approval to the decision of the Full Court of the Federal Court of Australia in SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1 (especially at [13], [14], [57]–[59]), albeit under the Migration Act 1958 (Cth) which, for the purposes thereof, contains a definition of the term “de facto relationship” in s 5CB(2). That section provides, inter alia, that a person is in a de facto a relationship with another person if: “they have a mutual commitment to a shared life to the exclusion of all others”; their relationship is “genuine and continuing”; and they “live together” or “do not live separately and apart on a permanent basis”. The authorities considered by the Federal Court included Crabtree v Crabtree (1963) 5 FLR 307, in which the Full Court of the Supreme Court of New South Wales concluded that a husband and wife could live “separately and apart” (for the purposes of s 28(m) of the then Matrimonial Causes Act1959 (Cth)) even when they both resided in the same home. That might take place where “there is such a forsaking and abandonment by one spouse of the other that the court can say that the spouses were living lives separate and apart from one another” (at 309).
The plurality in Fairbairn v Radecki said, in this regard, at [36]:
Consistently with that conclusion, the Full Court recognised that it was possible for a husband and wife who maintained “separate residences” to not be living separately and apart, so long as they lived as a “single household”. The Full Court drew a distinction between living in separate houses as against separate households. That distinction, it was held, applied also to the concept of “cohabitation”. It followed that in SZOXP, the relevant parties did not “live separately and apart” even though they had not physically lived together due to, amongst other things, the applicant being in detention.
The plurality continued, at [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).
As s 4AA(1)(c) of the Act provides, and as the High Court explained in Fairbairn v Radecki, a person is (or was) in a de facto relationship with another person if they have (or had) a relationship as a couple living together on a genuine domestic basis, having regard to “all the circumstances of their relationship”, which may include any or all of the circumstances listed in s 4AA(2). However, no particular finding in relation to any circumstances is to be regarded as necessary in deciding whether the persons have a de facto relationship (s 4AA(3)) and the Court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to it in the circumstances of the case (s 4AA(4)).
In some cases, regard to all the circumstances of the relationship may make it clear that the parties thereto have, or had, “a relationship as a couple living together on a genuine domestic basis” without the need for resort to the inclusive circumstances set out in s 4AA(2), in order to determine whether or not this is, or was, so. As was saliently said in National Union of Workers v ePharmacy Pty Ltd [2015] FWC 3819 at [26]:
That which has webbed feet, waddles and quacks is likely to be a duck. Putting a saddle on it and calling it Phar Lap will not change that fact.
In other cases, it will not be readily apparent whether or not the parties have, or had, a relationship as a couple living together on a genuine domestic basis. This brings to mind the dicta of Wilson J in Perlman v Perlman (1984) 155 CLR 474 at 500, where his Honour recalled "the answer of a great judge that, though he knew not when day ended and night began, he knew that midday was day and midnight was night": per Lord Simonds L.C., in Chapman v. Chapman [1954] AC 429 at 445–446. In such cases, reference will need to be had to the circumstances set out in s 4AA(2).
As to whether or not two people are or were in a de facto relationship, in Sinclair & Whittaker at [65], the Full Court said:
Given the nature of the definition of a de facto relationship in the Act, the ultimate decision as to whether there is a de facto relationship in any given time is a matter for the court and not a matter for the parties. Although their perception of the nature of the relationship is a relevant matter, it is not determinative.
In GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32, the plurality in the High Court recently said at [15]:
… an exercise of power under s 67 of the Civil Procedure Act to permanently stay proceedings on the ground that they are an abuse of process as any trial will be necessarily unfair or "'so unfairly and unjustifiably oppressive' as to constitute an abuse of process" is an evaluative but not a discretionary decision. Proceedings either are or are not capable of being the subject of a fair trial or are or are not so unfairly and unjustifiably oppressive as to constitute an abuse of process. Accordingly, the applicable standard of appellate review is not that specified in House v The King, but the "correctness standard" as explained in Warren v Coombes. Further, on the undisputed facts in the present case, the Diocese did not prove that there could be no fair trial (and did not contend otherwise that a trial would be so unfairly and unjustifiably oppressive as to constitute an abuse of process). Accordingly, the Diocese did not prove that the proceedings involved an abuse of process. …
(Footnotes omitted)
The plurality continued at [16]:
… It has been said that the concept of a "discretion" is "apt to create a legal category of indeterminate reference", but the presently relevant essential characteristic of a discretionary judicial decision is that it is a decision where more than one answer is legally open. In Norbis v Norbis, for example, the power of a court to make an order altering the interests of parties to a marriage was characterised as a judicial discretion because the decision called for "value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right". The line separating discretionary decisions (in which appellate review is confined to the House v The King standard) and other decisions (in which the "correctness standard" applies) was identified as that between questions lending "themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions" in which event "it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance", and questions to which there is but one legally permissible answer, even if that answer involves a value judgment.
(Footnotes omitted)
Accordingly, the plurality said at [17] that the extreme step, in that case, of the grant of a permanent stay of proceedings "demands recognition that the questions whether a trial will be necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process each admit of but one uniquely right answer" (emphasis added).
A decision at first instance, such as this, is not the appropriate vehicle to consider whether or not a declaration under s 90RD is discretionary or, rather, admits “of but one uniquely right answer”, as discussed in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore. That must await consideration by the Full Court of this Court or the High Court in the appropriate case.
Section 4AA(1)(c): Having regard to all the circumstances of their relationship, did the parties have a relationship as a couple living together on a genuine domestic basis?
Given the disparate accounts of the applicant and the respondent, and their respective witnesses, this is a case where, unlike midday and midnight, it is not readily apparent whether or not they were in a de facto relationship within the meaning in s 4AA(1)(c), without the need for reference to the circumstances set out in s 4AA(2) in order to “work out” if they had such a relationship. The words quoted in the preceding sentence appear in the heading to that sub‑section, namely: “Working out if persons have a relationship as a couple”. Section 13(1) of the Acts Interpretation Act 1901 (Cth) provides that:
All material from and including the first section of an Act to the end of:
(a)if there are no Schedules to the Act - the last section of the Act; or
(b)if there are one or more Schedules to the Act – the last Schedule to the Act;
is part of the Act.
Other than the fact that the parties had a sexual friendship, little, if anything, else is agreed.
In support of her application for a declaration that a de facto relationship existed between the applicant and she, the respondent, in her trial affidavit, contends, inter alia, that:
(a)The parties underwent a religious ceremonial marriage in late 2016.
(b)Initially, the applicant told her that he was divorced from his wife but that, in 2019, he travelled to Country B telling her that he was “getting divorced”.
(c)The applicant invited her children and her to move from Tasmania to live with him in Melbourne.
(d)Her children and she, upon moving to Melbourne (which she deposes occurred in 2017), lived “full time” with the applicant.
(e)The applicant organised a lease in her name to live at T Street, Suburb U (“Suburb U property”), which he guaranteed.
(f)The applicant “took control” of her bank accounts and Centrelink account.
(g)For a period, the applicant employed one of her sons.
(h)In mid-2020, she fell pregnant to the applicant who “forced” her to undergo an abortion.
(i)It was “not uncommon for the [applicant] to force sexual intercourse on [her]”, both during and after their relationship.
(j)In early 2021, the applicant and she purchased the Suburb E property, and her children and she provided the sum of $41,500 to the applicant for the purchase.
(k)A “private lease agreement” dated 26 March 2021, purportedly signed by her, for the Suburb E property, is a “fake” and was never signed by her.
(l)Her children and she paid all expenses for the Suburb E property, including the mortgage, by way of withdrawing cash from their bank accounts and giving these sums to the applicant.
(m)Throughout their relationship, she was “the primary homemaker, cooking and cleaning for the family” (sic).
(n)The applicant kept personal belongings at the Suburb E property, including clothes, a computer and printer, paperwork, work equipment and a bed.
Other than to admit that the respondent and he were friends with a sexual relationship, the applicant denies the respondent’s allegations. In support of his application for a declaration that a de facto relationship never existed between them, the applicant, in his trial and reply affidavits, contends, inter alia, that:
(a)The respondent and he never underwent any marriage ceremony, as alleged by the respondent.
(b)In or about mid-2016, he travelled to Tasmania from time to time for work projects, at which time he met the respondent. They developed a friendship. He thereafter occasionally visited her when he travelled to Tasmania for work. His work there concluded in about late 2016.
(c)In about 2018 (he contends), the respondent and her children moved from Tasmania to Melbourne for reasons unknown to him, taking up residence in the Suburb U property. He does “not recall agreeing to be a guarantor” for the respondent and points to the fact that the address listed for him in the lease agreement, namely, V Street, Suburb W, (“Suburb W property”) was an old address at the time (namely, late 2017), as he was then living in City X. Further, he asserts that his purported signature “appears different to my usual signature”. He denies that he lived with the respondent at the Suburb U property.
(d)After the respondent moved to Melbourne, they progressed from a friendship to a sexual relationship, meeting at the Suburb U property and at hotels.
(e)He did not have a relationship with the respondent’s children, was not involved in caring for them, did not provide financial support to them and did not meet her friends.
(f)He is the sole registered proprietor of the Suburb E property, the purchase price of which (over $1,000,000) was paid from savings of his; from the proceeds of sale of a real property in Suburb Y purchased by him in or about early 2018 and sold by him in or about late 2020, of which he was at all time the sole registered proprietor; and with a Commonwealth Bank of Australia loan (including for payment of settlement fees, Land Titles Office fees and mortgage insurance charges), secured by mortgage registered on the Certificate of Title to the property, in respect of which he has made the repayments from a bank account in his name, together with the payment of rates. He purchased the Suburb E property in early 2021 in order to live there with his wife and children when they arrived in Australia.
(g)In early 2021, the respondent told him that she had received notice to vacate the Suburb U property. As he did not know when his wife and children would be permitted to move to Australia, he agreed for the respondent and her children to live in the property for a period of 12 months, on the basis that she paid rent in the sum of $1,800 per month and they signed a “private lease agreement” dated 26 March 2021. That document consists of one page, on the letterhead of Z Real Estate in City X, and is styled “a private lease agreement between the landlord and tenant written by [Z Real Estate]”, in which the applicant is named as the landlord and the respondent is named as the tenant. It relevantly records that the applicant was:
… leasing out my home [D Street, Suburb E] Vic […]. The tenant [Ms Caris] will be renting [D Street, Suburb E] Vic […] for a period of 12 months from the date of 29 March 2021. The monthly payment of this home will be $1800.00.
(h)In March 2021, the respondent and her children commenced to reside in the Suburb E property and, until October 2021, she paid the rent to him in the sum of $1,800 per month but has not done so since then, albeit that she remains in occupation thereof.
(i)“As part of the lease agreement”, the respondent and he agreed that she was not to use the garage; rather, he was to have the use of it to store his work tools and additional motor vehicle. I observe that nowhere in that document is there a provision to this effect.
(j)Between late 2015 and early 2017, he lived in rented accommodation in the Suburb W property with housemates, including Mr G, who was witness in his case at trial.
(k)From early 2017 until late 2021, he lived in rented accommodation at AA Street, Suburb BB, (“Suburb BB property”) which he shared with housemates, including Mr G, as well as Mr H, who was also a witness in his case at trial. The respondent did not live with him or visit him at the Suburb BB property, nor did she meet his housemates.
(l)The respondent and he did not live together at the Suburb E property, save for a period of approximately 10 days in late 2021, when his wife and children arrived in Australia. Thereafter, the applicant and his family moved to rental accommodation in Suburb Y.
(m)The respondent and he did not purchase any property together, did not hold any joint bank accounts and were not dependent upon each other financially. Whilst he was listed as a guarantor for her in respect of the lease of the Suburb U property, which he does not recall signing, he was never called upon to make any payments on her behalf pursuant to the guarantee.
I turn, therefore, to consider the circumstances set out in s 4AA(2) of the Act in order to “work out” whether, having regard, inter alia, to those circumstances, the parties had “a relationship as a couple living together on a genuine domestic basis’, for the purposes of the third limb of the conjunctive definition of “de facto relationship” in s 4AA(1)(c) of the Act.
Section 4AA(2)(a): the duration of the relationship
The respondent contends that the parties’ commenced cohabitation and that an alleged de facto relationship commenced in late 2016, being the asserted date of an alleged “ceremonial marriage”.
The applicant contends that, although a friendship existed between the respondent and him from in or about mid-2016, their sexual relationship did not commence until 2018, after the respondent and her children moved from Tasmania to Melbourne.
They are both of Country B origin; they met through a mutual friend in the Country B community in Australia; and the respondent hails from the same region in Country B as his wife.
In her trial affidavit, the respondent deposes to the applicant and her undergoing a ceremonial marriage in late 2016. That is denied by the applicant in his reply affidavit. In his final written submissions, the applicant submits that the respondent’s narrative (and that of her ancillary witnesses in relation thereto) is wholly implausible and ought to be rejected. I agree.
When it was put to the respondent in cross-examination that, on that date, she was in Tasmania and the applicant was in Melbourne, she alleged for the first time that the marriage ceremony occurred by telephone with a religious leader in Country C. Given this unusual allegation, it could reasonably be expected that, if true, it would have formed part of her evidence in chief. It did not, notwithstanding that was alleged in the affidavit of her adult children. The respondent’s trial affidavit was filed on 27 April 2023, whereas that of her children were filed on 18 November 2022. Why an alleged telephonic marriage was referred to by them, rather than (or not also) by her, who was allegedly a party thereto, was never explained.
No evidence was adduced by the respondent from the relevant religious leader, nor was he even identified by name. No document was tendered by her recording, evidencing or certifying the conduct of alleged ceremonial marriage, let alone that it took place by telephone, with the religious leader in Country C and the applicant and the respondent in Australia. No expert evidence was adduced by the respondent that the religious law even permits marriage to be entered into in this manner.
Even if this were the case, no evidence, expert or otherwise, was adduced by the respondent that a religious leader (or other minister of the religion or religious official) could or would, as a matter of practice, be willing to perform such a ceremony in circumstances where, by nature of the telephone link, the parties cannot be seen are identified and there were no witnesses physically present (save allegedly for the respondent’s children, who were minors at the time).
Although, unlike the respondent, her adult daughter, Ms M, deposes in her affidavit that the ceremonial marriage was conducted by telephone by a religious leader in Country C, there is no evidence that, if such a telephone call occurred, it was on loudspeaker or that she was otherwise able to hear what was said by the other person or persons who were party thereto. Further, she was only 12 years of age at the time of the alleged marriage ceremony and, although she is now an adult, I am troubled by her involvement or, rather, over-involvement in these proceedings. She continues to live in the Suburb E property with the respondent, and derives a benefit thereby, and she translated the affidavits of the applicant and her witness, Ms N, from English into another language for them prior to them being sworn. This necessitated, in the case of Ms N, the re-swearing of her affidavit, this time through an independent interpreter, from English into another language (a variety of the other language, spoken in Country B). In cross-examination, Ms N readily conceded that she and the respondent’s daughter had discussed her evidence.
There are no wedding photographs of the applicant or the respondent, jointly or severally. The respondent alleged in cross-examination that there were such photographs but that the device upon which they were stored had been stolen by the applicant. However, that allegation was not made in her evidence in chief, it was not put to the applicant in cross-examination and no application was made to recall him. Further, the allegation is inconsistent with her tendering into evidence several photographs of the applicant and her spending time together in subsequent years (Exhibit R-5).
Further, as alluded to above, the applicant tendered a bank statement evidencing debit card payments made from his personal bank account at two hardware stores, both in City X, Victoria, on that date. That date fell on a Friday. When this was pointed out to the respondent in cross‑examination, she engaged in a convoluted attempt to explain this discrepancy, asserting that, after the telephonic ceremony between Tasmania and Country C, the appellant promptly returned to Melbourne. I find this to be inherently implausible. The applicant is a tradesperson and the evidence is that, at the time, although based in Melbourne, he also undertook work in Tasmania from time to time. If he was working in Melbourne that week, it is unlikely that he would have travelled to Tasmania for the ceremony, especially if only conducted by telephone, and then returned to Melbourne before the weekend, rather than spend it with his new bride. If he was working in Tasmania that week, it is again unlikely he would have returned to Melbourne before the weekend, rather than spend it with his new bride.
The respondent's further suggestion, in cross-examination, that the religious leader, having performed the ceremonial marriage by telephone, told the applicant and her to go and find two witnesses “to sign the document”, is similarly implausible. It is unclear what that document was. It was not tendered, even if unsigned, and, if it no longer exists, even in that form, no explanation was proffered by her as to its whereabouts or fate. Although not the subject of expert evidence, presumably marriage, even if only ceremonial and of no civil legal effect, is a serious matter in the religious law which effects a change in personal status. In the absence of evidence to the contrary, I find it implausible that a minister of religion would suggest that so-called “witnesses” be procured ex post facto.
Further, there is a clear conflict between the evidence of the respondent and that of her witness, Ms P, in relation to the timing of the alleged ceremonial marriage. The respondent firmly maintained, in cross-examination, that it occurred in late 2016. However, Ms P deposes, and maintained in cross-examination, that the respondent told her (and her mother), “[a] couple of months” after they migrated to Tasmania in late 2016, “that she was going to marry” the applicant. That would put the respondent’s announcement of her intention to marry the applicant in or about early 2017, some three months after the date on which she maintains it occurred. Further, Ms P deposes that the respondent “was very happy when she and the [applicant] ceremonially married” (emphasis added), albeit that she does not depose to having been present then.
The applicant submits the respondent’s allegation that they underwent a ceremonial marriage should be rejected and that her evidence in cross-examination in relation thereto should be found to be a recent invention. For the reasons above, I agree. I find that, being confronted in cross-examination with the above facts, the respondent confabulated her evidence regarding a telephonic ceremonial marriage, with an unidentified religious leader in Country C, the respondent in Tasmania and the applicant in Tasmania or, for that matter, Melbourne. I do not accept that any ceremonial marriage was entered into between the parties.
Insofar as the applicant maintains that the sexual relationship between the respondent and him did not commence until 2018, when he maintains she moved from Tasmania to Melbourne with her children, her evidence is that she did so in 2017. She points to the schedule to a lease to her of the Suburb U property dated late 2017, which was purportedly guaranteed by the applicant. That schedule, which was annexed to her trial affidavit, was tendered into evidence by her in support of her allegation that the parties' relationship was in existence prior to her moved to Melbourne. Rhetorically put, her case in this respect is: why would the applicant agree to be the guarantor of her obligations under the lease if they were not in a da facto relationship? I consider this issue further, below. The applicant does not specify, in his evidence in chief, when in 2018 he asserts their sexual relationship commenced, nor was he cross-examined in relation to it. Therefore, even if he be wrong, and it commenced in late 2017, when it would appear more likely that she moved to Melbourne, it is only by a few months and, in my view, nothing adverse to him turns on this, especially given the passage of time since then.
However, the applicant does not admit that the signature in respect of the guarantee clause in the schedule to the lease is his and deposes that it “appears different to [his] usual signature”. He deposes that he does not recall agreeing to being a guarantor for the respondent and that the address specified for him therein, namely, the Suburb W property, was an old address, at which he had not lived since early 2017. Rather, the preponderance of the evidence adduced by him is, which I accept on balance, is that his address in late 2017 was at the Suburb BB property and had been so for the preceding eight months. In the circumstances and, in particular, where, on the evidence, the applicant did not live, and for many months had not been living, at the Suburb W property, which was inexplicably specified in the schedule to the lease, I am unable to find that the guarantee was, in fact, proffered and signed by him.
Even if the applicant had guaranteed the lease, I do not consider that would necessarily have advanced the respondent's case, in circumstances where, on any view, they had been friends for some time already (irrespective of whether a sexual and/or de facto relationship then existed). I do not consider that it would necessarily be unusual or, indeed, inconsistent with the applicant's case, for one friend to assist another in this way.
Both parties agree that their relationship, whether it be merely a sexual friendship (as contended by the applicant) or de facto (as contended by the respondent), concluded in or about late September 2021, at about the time the applicant's wife and children arrived in Australia. Although the respondent asserts that, in October 2021, the applicant and she engaged in sexual intercourse on four occasions (which she irrelevantly asserts to have been non-consensual on her part), the declaration she seeks is that the de facto relationship alleged by her existed only until September 2021. Any sexual relationship which continued thereafter, which is denied by the applicant, is therefore irrelevant, even on her case.
Section 4AA(2)(b): the nature and extent of the parties' common residence
The respondent’s evidence, in her trial affidavit, is that the parties’ alleged de facto relationship commenced in Tasmania in late 2016 and that, when her children and she moved to Melbourne, in late 2017, they “lived full time” with the applicant, initially in the Suburb U property and, thereafter, from in or about early 2021, in the Suburb E property.
Insofar as the period prior to the respondent’s move to Melbourne is concerned, she deposes in her trial affidavit that the applicant undertook work in Tasmania, “flying in and flying out to and from Melbourne”. Even on her own case, it is only in respect of the period after they moved from Tasmania to Melbourne that she deposes that “my children and I … lived full time” with the applicant. Neither the respondent, nor any of her witnesses, including her children, give evidence that the applicant lived with her when he travelled to Tasmania for work. At most, the respondent's witness, Ms N, deposes to having seen the applicant, on occasions, at the respondent's home in Tasmania. Whilst that evidence of Ms N does not necessarily advance the respondent's case or hurt that of the applicant, I nevertheless approach her evidence generally with caution, in circumstances where she conceded having discussed it with the respondent's daughter, who purportedly translated her affidavit for her from English into another language. Importantly, neither of the respondent’s two elder children, who lived with her in Tasmania, depose to the applicant ever having lived there with them. Her third and youngest child was 16 years of age at the time of trial and therefore I can draw no adverse inference whatsoever from the absence of any evidence from that child, who was aged 9-10 years of age at the relevant time.
In respect of the period after the respondent and her children moved to Melbourne, and until September 2021, her evidence, and that of the elder two, is that the applicant lived with them, initially in the Suburb U property and then in the Suburb E property. The applicant concedes that, for the purposes of their sexual relationship, they “met at the [Suburb U] property and at hotels” and, subsequently, also at the Suburb E property. However, he denies that they shared a common residence at any time, save for a period of approximately 10 days in late 2021, after his wife and children arrived in Australia. Rather, his evidence is that during the period between late 2016 and September 2021, during which time the respondent asserts they were in a de facto relationship, he lived in rented accommodation with other Country B men.
The evidence of the applicant is that, from late 2015 until early 2017, he lived in the Suburb W property with housemates, including Mr G, and that from early 2017 until late 2021, he lived in the Suburb BB property with housemates, including Mr G and Mr H.
The evidence of Mr G, who was not required for cross-examination and whose evidence is therefore unchallenged, is that between in or about mid-2016 and early 2017, the applicant and he lived together in the Suburb W property and, thereafter, they lived together in the Suburb BB property.
The evidence of Mr H, who also was not required for cross-examination and whose evidence is therefore also unchallenged, is that in 2019 he moved into the Suburb BB property, in which the applicant was then living and continued to live until late 2021.
The evidence of the applicant is that the respondent never visited or stayed with him at the Suburb W property or the Suburb BB property. The evidence of Mr G and Mr H is that neither of them ever met the respondent; the applicant never described the respondent to either of them as his partner; the applicant never brought any females to either of those properties; and, as housemates of the applicant, they each saw him on most days and regularly spent time with him, usually whilst eating dinner.
The applicant disclosed to the respondent, annexed to his trial affidavit (Annexure ME-5) and tendered (Exhibit A-4) a tranche of documents said to record and corroborate his addresses at the Suburb W property and then the Suburb BB property in the period from 2016 until 2021. Those documents comprise:
·Australian Taxation Office Notices of Assessment for the financial years ending 30 June 2016 - 30 June 2021 (inclusive);
·a letter from the Department of Immigration and Border Protection dated 14 July 2016;
·a superannuation statement for the financial year ending 30 June 2019;
·a letter from VicRoads dated 29 March 2023 for the period from late 2015 until the date thereof;
·a Roadside Assistance membership letter dated 4 November 2019;
·an insurance instalment invoice dated 2 November 2018;
·an insurance renewal notice dated 6 July 2019;
·a State Revenue Office land tax assessment notice for the period 1 July 2019 – 31 December 2019; and
·a CC Organisation tax invoice dated 29 July 2020.
Viewed cumulatively, they generally corroborate the applicant’s case; however, in certain instances, viewed individually, they do not necessarily do so.
In respect of the Australian Taxation Office Notices of Assessment:
·the notice for the financial year ending 30 June 2016, dated 23 December 2016, is addressed to him at the Suburb W property;
·the notice for the financial year ending 30 June 2017, dated 23 February 2018, is addressed to him at the Suburb W property;
·the notice for the financial year ending 30 June 2018, dated 18 December 2019, is addressed to him at the Suburb BB property;
·the notice for the financial year ending 30 June 2019, dated 30 June 2020, is again addressed to him at the Suburb W property;
·the notice for the financial year ending 30 June 2020, dated 17 December 2020, is also again addressed to him at the Suburb W property; and
·the notice for the financial year ending 30 June 2021, dated 18 October 2021, is once again addressed to him at the Suburb BB property.
The applicant was not challenged in cross-examination in relation to any of the documents comprising Exhibit A-4 and, in particular, the inconsistencies in the addresses in the Notices of Assessment, nor were any submissions made on her behalf in relation thereto. However, I note that the Notice of Assessment for the financial year ending 30 June 2018, is addressed to him at the Suburb BB property, to which he moved a few months prior to the commencement of that financial year, and at which his and his relevant witness’s evidence is that he resided at the date of that notice. Whilst there is no explanation as to why the Notices of Assessment for the following two financial years were once again addressed to him at the Suburb W property, there is no suggestion that he returned to live there.
Similarly unusually but, given the timeframe involved, of no great import, is the fact that the letter from VicRoads states that the records of the Secretary to the Department of Transport disclose that the applicant’s recorded addresses were relevantly as follows:
·from late 2015 to early 2017: the Suburb W property;
·from early 2017 to mid-2021: the Suburb BB property;
·from mid-2021 to early 2022; the Suburb E property.
This is, prima facie, inconsistent with the applicant’s evidence that he continued to live at the Suburb BB property until the arrival of his wife and children in Australia in late 2021 and that he did not live at the Suburb E property until their arrival, and then only for a period of some ten days. However, his evidence is that he purchased the Suburb E property with the intention of living there with his wife and children once they arrived, which they did some three months after mid-2021. Although not the subject of evidence, it is not inconceivable and, indeed, it may be likely, that they did not arrive without some prior notice, which may explain this inconsistency, such that he may have specified the Suburb E property in anticipation thereof (albeit that it was subject to the twelve-month “private lease agreement”). In any event, neither this inconsistency, nor that in the ATO Notices of Assessment, were the subject of cross‑examination or submissions on the part of the respondent.
In contrast to the applicant, the respondent did not produce any evidence corroborative of her allegation that the applicant and she shared a common residence. Insofar as she relies upon the schedule to the lease for the Suburb U property, I have already made findings in relation to the nomination therein of the applicant as the guarantor; however, she is named as the sole tenant thereof. If that property had been intended to be their common residence, it might ordinarily be presumed that they would both have been named as tenants. Further, the evidence of the respondent is that she paid all of the rent and outgoings for that property. To make the implicit explicit, the converse is that the applicant did not do so. In the circumstances, I do not consider that the respondent’s evidence in this regard advances her case.
The applicant further adduced evidence, in the form of text messages between the respondent and him in April 2021, which were tendered, showing the two of them exchanging text messages very late at night, both on weeknights and on a weekend, namely, on Saturday, 10 April 2021, at 1:17 AM and 1:28 AM; on Sunday, 11 April 2021, at 10:10 PM and 11:10 PM; on Tuesday, 13 April 2021, at 1:11 AM; and on Wednesday, 14 April 2021, at 11:11 PM, 11:12 PM and 11:14 PM. Prima facie, those messages would tend to suggest that they were not together at those times, on those dates. When it was put to the respondent, in cross-examination, that couples who live together would not ordinarily be exchanging text messages at that time of the night, she suggested, again for the first time and without this ever having been put to, or raised against, the applicant, that he would sometimes go camping or he would become drunk and have to go and stay at the home of a friend. When asked if she maintained this to be the case on weeknights as well, she speculated that she may have been away for work then. On balance, I do not accept that this was, or may have been, so.
I consider that the respondent’s case in this respect is not advanced by any of her supporting witnesses. Ms P’s evidence is that when she visited the respondent at the Suburb U property, approximately weekly, the applicant was “always present”. Ms N, whose evidence, in any event, I consider to be tainted, for the reasons given above, deposes that, after she met the respondent, in early 2017 in Tasmania, she first met the applicant and thereafter she “usually saw” the parties at the respondent’s home there. Further, she deposes that, after she moved to Melbourne in late 2018, she “regularly saw the [respondent] … about once a week”; “always saw the [applicant] if it was a social gathering with families”; and, when she visited the respondent at the Suburb U property, the applicant “was always there”. However, she does not condescend to give any particulars of the frequency of the social gatherings or her visits to the Suburb U property. In respect of the evidence of the respondent’s two adult children, I find them to be partisan witnesses and, in particular, the evidence of the adult daughter to be tainted by reason of her having translated the affidavits of the respondent and Ms N. Further, doubt is also cast on their independence by reason of the benefit derived by them from living, together with the respondent, in the Suburb E property, which is registered in the name of the applicant and vacant possession of which is sought by him. The respondent’s adult son deposes that, after the respondent, his siblings and he moved to Melbourne and into the Suburb U property, the applicant “lived with us full time”. The respondent’s adult daughter deposes that “[w]hen in Tasmania the (applicant) travelled between Tasmania and Melbourne for work”, without any mention of where he lived or stayed when there. After their move to Melbourne, she deposes that “[w]hile living in [Suburb U], we were a family”. Not only is that an inadmissible conclusion, unsupported by any acts, facts, matters and things said to give rise thereto, paragraph 10 of her affidavit does not make it explicit that the applicant lived there with them.
Whilst I accept that, in circumstances where the parties were, at least, engaged in a sexual relationship, the applicant accordingly may have stayed with the respondent and her children in the Suburb U property and the Suburb E property, on occasions, and even possibly more frequently, they did not share a common residence and his principal place of residence was elsewhere.
Section 4AA(2)(c): whether a sexual relationship existed
It is common ground that the parties had a friendship which involved a sexual relationship; indeed, it is one of the very few areas of common ground between them.
As previously discussed, the respondent contends that it commenced in late 2016, whereas the applicant contends, and I accept that it commenced in early 2018.
The applicant contends that their sexual relationship ended in September 2021. As also previously discussed, whilst the respondent contends that thereafter, in October 2021, the applicant and she engaged in sexual intercourse on four occasions (which she asserts to have been non-consensual on her part), the declaration she seeks is that the de facto relationship alleged by her existed only until September 2021. Accordingly, any sexual relationship which continued briefly thereafter, which in any event is denied by the applicant, is irrelevant, even on her case.
In the circumstances, I find that the parties’ sexual relationship was of nearly four years duration.
Under the rubric of s 4AA(2)(c), the applicant, in the final written submissions filed on his behalf, addresses the respondent’s evidence in relation to a terminated pregnancy in mid-2020, at a time when it is common ground their sexual relationship was ongoing.
The respondent deposes that, in mid-2020, she fell pregnant to the applicant but that “he forced [her] to abort the child” two months later, attending a medical practitioner with her the purposes thereof. In his reply affidavit, the applicant leaves open the possibility that the respondent may have fallen pregnant as a consequence of their sexual relationship. However, he expressly denies being made aware that she was pregnant, that he forced her to have an abortion or that he attended any medical appointment with her for the termination, as it is alleged in her case.
An affidavit by Dr S, a general medical practitioner at the DD Medical Centre, was filed on behalf of the respondent. She deposes that in mid-2020 she consulted with the respondent “and her partner, [Mr Emer] in relation to an unplanned pregnancy”; they “both wanted to terminate the pregnancy on psychosocial grounds” (emphasis added); and she performed the termination that day. Annexed to her affidavit is a letter dated 4 August 2022 to similar effect, save that it does not record any attendance by, or reference to, the respondent's “partner”.
Contrary to the respondent’s allegation that the applicant forced her to undergo an abortion, the evidence of Dr S is that the respondent and her partner both wanted to terminate the pregnancy.
A number of matters were elicited from the doctor in cross-examination, as follows.
She said that the general practice of the DD Medical Centre is to require patients to complete a patient registration form upon their first attendance there. The respondent’s patient registration form, which was on the clinic’s file and which she identified, was tendered into evidence. It is undated but it is not disputed that it was completed in mid-2020. No one was nominated, either as the respondent’s next of kin or as an emergency contact not living with her.
Although not referred to in her affidavit, or the annexure thereto, it transpires that the respondent attended upon Dr S five days earlier than first deposed by her. Dr S said that her practice was to record information, including as to persons attending with the patient, in her notes, as such information was presented to her. Her notes of the respondent’s attendance on that earlier occasion, which were tendered into evidence, confirmed that she attended on her own that day. Further, her notes contain no reference to a partner, or to pressure by a partner to undergo an abortion.
Dr S’s notes of her consultation with the respondent on the later date record that, unlike the assertion in her affidavit that she attended together with “her partner, [Mr Emer]”, she attended on that occasion with her “boyfriend”, whose name is not recorded. Dr S said that he was introduced as the respondent’s boyfriend and clarified that the references to “STI screen” and “new partner” were references to a screen for sexually transmitted infections due to a new sexual partner. I observe that, even on the applicant’s case, he could not have plausibly been described as a new sexual partner when the respondent and he had been engaging in sexual intercourse by then for approximately 2.5 years.
Notwithstanding Dr S’s assertion in her affidavit that the respondent attended upon her on the later date with her partner, whom she named as being the applicant, and noting the absence of any reference to a person accompanying her on that date in the letter dated 4 August 2022 annexed to her affidavit, Dr S could not, in court, identify the applicant as the man who attended with the applicant on the date of the second consultation because she said the person in question on that occasion was wearing a mask.
Dr S also said in cross-examination that the man who attended upon her with the respondent in mid-2020 had a good command of the English language and that, if that were not the case, she would not have proceeded with the termination of the pregnancy because of the significant nature of the procedure and the variety of related topics, including the termination itself and contraception options that were discussed at length and recorded in her notes.
Although in cross-examination, Dr S first volunteered that she had met the applicant “on several occasions”, she did not give that evidence in her affidavit and was not re-examined about it.
The applicant submits that there is nothing in the evidence of Dr S that substantially undermines the applicant’s evidence on this issue. Save for one qualification, I agree; namely, I consider there is nothing at all in her evidence that undermines his. It is common ground that, by mid‑2020, the parties were not new sexual partners. On the applicant’s evidence, they had been so since early 2018. On the respondent’s evidence, they had been so since late 2016. On either view, they were not new sexual partners and yet this was a clearly discussed feature of the consultation in mid-2020, as recorded in Dr S’s notes and conceded by her in cross‑examination. Further, contrary to the evidence of Dr S that the man who accompanied the respondent had a good command of the English language, it was apparent in the course of his oral evidence that the applicant has a poor grasp of English and he required and had the services of an interpreter. I observed that, even when not giving oral evidence, he had the services of an interpreter, while sitting in the body of the court, over the six days of the hearing. Moreover, both his trial affidavit and his reply affidavit were affirmed after the contents thereof were translated for him from English into another language. He was never challenged, nor is it submitted, on behalf of the respondent, that his level of English is such that he did not require that assistance.
Insofar as may be relevant to s 4AA(2)(c), I am not satisfied that the termination procedure undergone by the respondent in mid-2020 related to a foetus conceived by her with the applicant or that the man who attended with her upon Dr S in mid-2020 was the applicant. The corollary to that is that I consider the references in Dr S’s notes to a “boyfriend” and “new [sexual] partner” of the respondent reflect poorly upon her credit insofar as she contends that she fell pregnant to the applicant and that he was her sole sexual partner during the entirety of the period in which she alleges they were in a de facto relationship.
Section 4AA(2)(d): the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
Insofar as the respondent's evidence is that she paid all the rent and outgoings for the Suburb U property between late 2017 and early 2021, she was the tenant thereof and lived there with her three children. I have a ready found that the Suburb U property was not the parties’ common residence and that, during this period, the applicant lived in the Suburb W property and subsequently the Suburb BB property. In the circumstances, I consider that nothing turns on the fact that the respondent paid all the rent and outgoings for the property rented by her, even if the applicant stayed there from time to time in the course, and for the purpose, of their sexual relationship.
Insofar as the respondent deposes to alleged contributions to the Suburb E property, in which she and her children commenced to live in early 2021 and in which they continued to live until the time of the end of the de facto relationship alleged by her (being the end of the sexual relationship contended by the applicant) and continue to live, against his wishes, I consider these below, under the rubric of s 4AA(2)(e).
Insofar as the respondent deposes to financial matters involving her adult children, as do they, and seeks to rely upon same, not only are those matters denied by the applicant but, in my view, they are irrelevant for the purposes of s 4AA(2)(d), which is directed to “the financial dependence or interdependence, and any arrangements for financial support, between the parties” (emphasis added) to the alleged de facto relationship under consideration. Whilst, as a general proposition, it may be that, in certain circumstances, a financial relationship between a party to a disputed de facto relationship and the children of the other party might conceivably be relevant to the question of whether the parties had a relationship as a couple living together on a genuine domestic basis, that is not what Parliament has provided in s 4AA(2)(d), nor in any of the other paragraphs of that sub-section. I acknowledge that, in some cases, it may form part of “all the circumstances of their relationship”, to which the Court is directed to have regard by s 4A(1)(c). However, for the reasons herein, this is not such a case.
In cross-examination, Ms P asserted that the respondent and her two adult children had received distributions in accordance with their respective balances in the fund but then conceded that no documentation whatsoever existed that recorded those balances or how they were calculated. Further, she offered no convincing explanation as to why, if the funds had in fact been requested by the applicant, as she asserted, they could not simply have been provided directly to him, as a person also from Country B, rather than through the intermediary of others.
In circumstances where, on the applicant’s evidence, including the documentary evidence that was tendered on his behalf, the payment of the purchase price for the Suburb E property, and the associated purchase costs, are accounted for, and given the inconsistent and contradictory evidence by and on the half of the respondent, I am not satisfied that she or her adult children made any financial contribution thereto.
The applicant's evidence is that he bought the Suburb E property with the intention of living in it with his wife and their children, once they migrated to Australia. This is consistent with his payment for their Visa application in late 2020, the invoice / receipt, in the sum of $15,455, for which was tendered and accepted into evidence and marked Exhibit A-6. Although that document is addressed to the applicant’s wife, at the Suburb BB property where he then lived, she and their children were not then in Australia and they did not arrive in this country until late 2021. Further, the email address specified on the invoice / receipt bears the first and middle names and the surname of applicant.
The applicant submits in this regard, and I agree, that, in the circumstances, it is implausible he would outlay nearly $15,500 in late 2020 for his wife and children to migrate to Australia, only then to purchase a home, with a mortgage of nearly $1 million, for the respondent, her children and him to live in, on an ongoing basis, as an alleged family unit, whilst fully aware that his wife and children would have nowhere to live when they arrived in this country.
The respondent does not explicitly depose to any intention on her part, or agreement with the applicant, that the Suburb E property was to be a family home for the two of them, her children and any children they might have, albeit that in paragraph 15 of her trial affidavit she refers to it as “our home”. Similarly, her adult children, in their affidavits refer to it as “our family home” and (in the case of her son) and “our own home” and “the new home” (in the case of her daughter).
The applicant deposes that, in early 2021, the respondent told him that the Suburb U property was being sold and that she was given notice to vacate. Her trial affidavit was silent in this regard and she only conceded that relevant fact when it was put to her in cross-examination.
Further, he deposes that, as he was not sure when his wife and their children would be permitted to migrated to Australia, he agreed for the respondent and her children to move into the Suburb E property for a period of 12 months, on the basis that she paid rent in the sum of $1800 per month (which was only slightly more than one half of his monthly mortgage repayments). He also deposes that the respondent and he entered into and signed a “private lease agreement” (whatever that be) dated 26 March 2021. That is a generous description of the nature of that document; I consider it to be more in the legal nature of a licence to occupy, albeit that nothing turns upon this distinction present purposes. That document is annexed to his trial affidavit and was tendered by him and accepted into evidence and marked Exhibit A-3. It is a one-page document, on the letterhead of Z Real Estate Pty Ltd in City X, and provides as follows:
26/03/2021
This is a private lease agreement between the landlord and tenant written by the [Z Real Estate].
Landlord details:
[Mr Emer, AA Street, Suburb BB] Vic […]
Tenant Details:
[Ms Caris, T Street, Suburb U] Vic […]
My name is [Mr Emer]. | am leasing out my home [D Street, Suburb E] Vic […]. The tenant [Ms Caris] will be renting [D Street, Suburb E] Vic […] for a period of 12 months from the date of 29 March 2021.
The monthly payment of this home will be $1800.00.
[Signature] [Signature]
Disclaimer: this letter is only written by [Z Real Estate]. [D Street, Suburb E] in not managed by [Z Real Estate].
Two signatures appear above the disclaimer. The applicant deposes that one signature (on the left) is his and the other (on the right), comprised of the initials “[MC]” (being the initials of the respondent), is hers.
The applicant deposes that, as part of the “private lease agreement”, the respondent and he agreed that she was not to use the garage, as he was to do so, in order to store his work tools and a motor vehicle. There is no such provision in that the document, although it is appears to be common ground that he stored such equipment there. However, it was not submitted on behalf of the respondent that anything relevant turns upon this discrete issue.
Rather, the respondent deposes that, on 21 June 2022, she received from solicitors then acting for the applicant a letter which, inter alia, described their relationship “as a ‘casual sexual relationship’ and one of landlord and tenant, enclosing what is a fake private lease agreement dated 26 March 2021. The allegations in the letter are false, and the fake private lease agreement was never signed by me” (emphasis added).
The applicant asserts that the second signature on the “private lease agreement”, comprised of the initials “[MC]”, is hers. In cross-examination, the respondent said that her signature is “totally different”. Although in no way determinative of the issue, I observe that, to my untrained eye, that signature appears remarkably similar to her signature in the jurats to both her trial affidavit and her Financial Statement filed for trial, as well as her signature on her patient registration form at DD Medical Centre (Exhibit A-13). By the time the trial commenced, the respondent had, on her evidence, been in possession of that document for over a year, during which time she was aware of his allegation that the signature was hers. Having pointed to that document in support, in part, of his allegation that the parties were never in a de facto relationship, the burden of proof then fell upon her to establish that it was not her signature. She did not seek to adduce, and did not adduce, any expert evidence from a handwriting expert (either a single or an adversarial one) that the signature asserted by the applicant to be hers was, in fact, not so. Unlike him, she could, presumably, have provided many other examples of her signature for analysis and consideration by such an expert. In the circumstances, I do not accept, on balance, that the signature on the document in question is not hers. It is no answer that, as is submitted in the respondent’s written closing submissions, the applicant did not call any evidence from anyone associated with Z Real Estate. I consider that, having made out a prima facie case, it fell to the respondent to rebut same, which she failed to do.
The applicant deposes that, between March and October 2021, the respondent paid rent to him in the sum of $1,800 per month (being the amount specified in the “private lease agreement” alleged by him), but that she has failed to make any payments thereafter. No such payments for that period appear in his CBA account #...80 of the CBA loan. As I have found above, the credits to the latter were debited from the former. He has continued to make the monthly CBA loan account repayments, together with payment of rates, since then, as he is liable to do. That is evidenced, in part, from the bank statements from his CBA account #...80 (Exhibit A-1), which disclose the ongoing monthly payments of $3,500 in October, November and December 2021, after the period in respect of which the applicant contends they were in a de facto relationship.
The respondent alleges that, since settlement of the purchase of the Suburb E property, she and her children have paid all expenses therefor, including the mortgage, “by way of withdrawing cash from [their] bank accounts and giving these sums to the applicant”. That is not inconsistent with the applicant’s evidence that, between March - September 2021, the respondent paid rent to him pursuant to the “private lease agreement”. Further, the applicant admits that the respondent has paid utility accounts for that property; however, not only is that not inconsistent with her being a tenant thereof (or akin thereto), it is, indeed, consistent therewith.
The respondent’s adult son deposes that, once his mother, his siblings and he commenced living in the Suburb E property, the applicant requested that he (without mention of his mother or adult sister) pay half of the mortgage and that the applicant requested cash from him, which he would take out of his account and which the applicant would apply thereto. That is not necessarily consistent with his mother’s evidence that the three of them paid all expenses for the property, including the mortgage.
The respondent's adult daughter deposes (albeit in inadmissibly) to her belief that, when living in the Suburb E property, her adult brother was paying money towards the mortgage and that she would often see her mother and brother hand cash to the applicant. Unlike her mother’s allegation regarding her, she does not depose to having made any ongoing payments in relation to that property.
Surprisingly, given those allegations and the relatively recent period of time to which they relate, neither the respondent nor her adult son adduced any documentary evidence whatsoever of such alleged withdrawals from bank accounts. Indeed, as I have found above, Exhibit A-1, being statements for the applicant's CBA account #...80 for the period from 1 January until 31 December 2021, disclose debits from that account of $3,490 in March 2021 and then $3,500 per month between April and December of that year. Whilst the allegations of the respondent and her adult son, namely, that cash withdrawn from their bank accounts was provided to the applicant, is not inconsistent with the monthly debits from his CBA account #...80, that allegation is entirely unsubstantiated by any bank statements of theirs and, in the circumstances, I find, on balance, that she has not discharged the burden of proof which falls upon her in this regard.
In the circumstances, I do not accept that the parties acquired or owned property together and, insofar as the respondent and her children had the use of the Suburb E property, I find that they did so pursuant to the so-called “private lease agreement”.
Section 4AA(2)(f): the degree of mutual commitment to a shared life
It is important to note that the circumstance prescribed by Parliament, to which regard may be had by the Court, is the degree of mutual commitment by the parties to a shared life. It is not sufficient that only one of the parties was committed to the relationship, but the other was not: Jenkins & Anor & Cowper [2015] FCCA 357 at [31(d)].
The respondent’s case is that there was mutual commitment by the applicant and her to a shared life. This is denied by the applicant. His evidence is unequivocal, and was not shaken in cross‑examination, that, while the respondent and he did have a friendship that segued into a sexual relationship, it was no more. This includes his evidence that his intention always was that his family would come to Australia to live with him. I accept that intention is demonstrated, in part, by the steps taken by him to relocate his wife and children from Country B, including at the not insignificant cost to him of approximately $14,500, which he would likely not have undertaken if he saw no future with them here in Australia but, rather, with the applicant and her children.
Even if it were somehow sufficient for only the respondent to have been committed to a shared life with the applicant (and it is not), I do not accept that, in respect of the period of the alleged de facto relationship contended by her, namely, late 2016–late 2021, she was wholly committed thereto. This is because of the evidence of Dr S that the male who attended with the respondent upon her in mid-2020 was described by the respondent as her “boyfriend” and “new [sexual] partner”.
Similarly, in relation to the evidence of Dr S and the documents from her file that were tendered and marked Exhibit A-13, it is noteworthy that no particulars were specified by the respondent, in her patient registration form, as to any next of kin. Had the applicant accompanied her and/or had they then been in a de facto relationship, as she alleges, no explanation was proffered by her as to why he was not named on the form as her next of kin.
The applicant also points to Exhibit A-15, which is comprised of the respondent’s Medicare card and her Centrelink Healthcare card, and the fact that he is not named on either card. I place little weight thereon. Insofar as her Medicare card is concerned, it is valid to June 2025. There is no evidence of when it was issued, in circumstances where both parties concede that their relationship, be it de facto (as contended by the respondent) or a sexual friendship (as contended by the applicant) concluded in September 2021. Insofar as her Centrelink Healthcare card is concerned, whilst the copy thereof that was tendered expired on 2 March 2021, there is no evidence that, even if the parties were in a de facto relationship, the applicant would have been named thereon, especially if he were not entitled to such benefits.
The respondent points, inter alia, to the applicant’s concession in cross-examination that he did not have a sexual relationship with any person other than her during the period of time under consideration. To my mind, whilst relevant, that is not determinative of whether or not there was a mutual commitment to a shared life, and certainly not when viewed in the context of all the other circumstances of this case.
I do not find that there was any, or any sufficient, mutual commitment of the parties to a shared life.
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
It is common ground that no relationship of the parties is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship and, accordingly, nothing further need be considered in this regard.
Section 4AA(2)(h): the care and support of children
Unlike s 90RB and s 90SM(4)(c), s 4AA(2)(h) does not differentiate between children of the alleged de facto relationship and children more generally.
The respondent addresses this issue only briefly in her written closing submissions. She submits that her adult son deposes that he looked upon the applicant as a father and that her adult daughter deposes that she looked upon him as a family member and protector and that neither of them resiled from their evidence in this regard in cross-examination. That may be so but, for the reasons herein, I approach their evidence with caution, in circumstances where I find they were partisan witnesses and there were several instances of inexplicable inconsistencies in their evidence.
Turning to the evidence of the respondent’s adult children more particularly, her son deposes, inter alia, that upon meeting the applicant, he was nice to him; he taught him how to drive; they went food shopping together; on occasion, prior to his family’s move to Melbourne, he visited him in Melbourne on occasion and stayed with him; he considered him to be a “father figure”; and, in 2019, he commenced to assist him in his business on weekends and days off from school and that, whilst not paid for such work, the applicant nevertheless gave him pocket money from time to time. Insofar as he also makes allegations in relation to his income from his second job, I have a ready considered and made findings in relation to same above.
My reservations regarding the credit of the respondent’s son were heightened by his evidence in relation to the applicant's Motor Vehicle 1 which was stored in the garage of the Suburb E property. The applicant, in his trial affidavit, sworn and filed on 18 April 2023, deposes that, in December 2021, he received a text message informing him, for the first time, that Motor Vehicle 1 had been transferred out of his name but that he had not signed any transfer form therefor. The respondent's adult son, in his affidavit sworn on 17 November 2022 (and filed on 29 November 2022), although alleging that, when he attained the age of 18 years (namely, in 2019), the applicant told him that he “could get a car after we had purchased a home”, makes no reference to Motor Vehicle 1.
On 7 May 2023, some three weeks after the applicant's affidavit was filed, the respondent’s adult son affirmed a second affidavit, which I subsequently gave leave to the respondent to rely upon. In it, he alleges, for the first time:
In or about 2019 I purchased [Motor Vehicle 1] from the [applicant] for $9,000. I initially paid the [applicant] a lump sum of $5,000 and then paid off the balance of $4,500 [sic] from my earnings ….
No evidence was adduced by him to corroborate these alleged payments, notwithstanding that statements for his Commonwealth Bank of Australia account for the earlier period between 31 July–31 December 2018 were available and were tendered (on behalf of the applicant) and accepted into evidence and marked Exhibit A-16.
He asserts that Motor Vehicle 1 was never transferred into his name as the applicant did not want to pay for a certificate of roadworthiness and did not want to pay for any repairs that the vehicle might have needed. He further asserts that, although not deposed to buy his mother, in November 2021, she had a motor vehicle accident whilst driving Motor Vehicle 1 and that, in December 2021, he contacted the applicant to inform him about the accident. He continues:
The [applicant] told me to write a contract of sale to transfer the motor vehicle from his name to my mother’s name, as it was unable to be transferred into my name as I had lost my licence. The [applicant] invited me to his home and I attended with my friend [Mr R] as I did not trust being around the [applicant] at this point. While at the [applicant’s] home, he provided me with his license details and told me what to write in the contract including the price of $1,000. I followed the [applicant’s] direction. Once the contract was drawn up, the [applicant] signed his name. I then took it home for my mother to sign.
This, in his second affidavit, is notwithstanding his evidence in his first affidavit, which he adopted in the witness box as being true and correct, without amendment, that after the applicant (and his wife and children) left the Suburb E property in late 2021:
I have not spoken to the [applicant] since he left the home, other than telling him to leave our family alone over the phone during a call when he was threatening my mother.
The respondent’s adult son deposes that annexed to that second affidavit and marked ML1 is what is alleged to be a true copy of the said contract between applicant and the respondent.
He further deposes that, in December 2021, he took the alleged contract of sale and a certificate of roadworthiness to VicRoads and paid for the transfer of Motor Vehicle 1 and that annexed to that affidavit and marked ML2 is a true copy of the VicRoads vehicle registration transfer advice and receipt bearing that date.
Neither of those annexures was sought to be tendered. Insofar as the second annexure is concerned, the two documents therein merely confirm that the respondent was named as the applicant for the transfer of Motor Vehicle 1 and that the sum of $83.30 was paid, comprising the transfer fee and motor vehicle duty.
Insofar as the first document is concerned, it is undated but is handwritten on a page of a diary dated Sunday, 28 June 2020, and said to effect the sale of the motor vehicle by the applicant to the respondent. The address specified for each of them is that of the Suburb E property. However, even on the respondent’s case, by December 2021, the applicant was not living there but, rather, with his wife and children in rented accommodation elsewhere. Further, despite being shown in the witness box a template transfer of registration form required by VicRoads to be completed in relation to all vehicle transfers, the respondent’s adult son continued to maintain that the handwritten, undated note constituted sufficient proof to VicRoads to effect the transfer.
Counsel for the applicant, in his written closing submissions, describes the adult son’s evidence regarding the transfer of Motor Vehicle 1 out of his name as a “fanciful suggestion”. For the reasons herein, I agree.
The adult son’s friend, Mr R, to whom he refers in his second affidavit as having accompanied him to the applicant’s home in December 2021, swore an affidavit on 8 May 2023, presumably in an attempt to corroborate his evidence, which I also subsequently gave leave to the respondent to rely upon. He was not required for cross-examination by counsel for the applicant. Mr R relevantly deposes that, on that date, the respondent’s adult son asked Mr R to accompany him to see the applicant and that, when they arrived at the applicant’s home, “the [applicant] came outside and told [the respondent’s adult son] what to write in a contract of sale for [Motor Vehicle 1]”. However, Mr R does not depose to the address at which he attended, nor that he knew or recognised the applicant or that the applicant introduced himself. Given my concerns regarding the evidence of the respondent’s adult son and these “known unknowns” in Mr R's affidavit, I do not consider his evidence sufficiently corroborative of the son’s evidence. Even if Mr R knew or recognised or was introduced to the applicant, insofar as he further deposes that he “witnessed the [applicant] sign his name of the contract of sale”, the only signatures on that document are that of the respondent and that alleged (but denied) to be that of the applicant. Neither of those signatures purports to be witnessed by a third party and the respondent’s adult son does not allege that Mr R witnessed the applicant’s signature.
The respondent’s daughter deposes, inter alia, that after she was introduced to the applicant (in Tasmania) he visited at her family’s home and took them on outings; he took her, together with the respondent, to her Year 7 orientation; referred to her on an occasion as his daughter; she “referred to” (as opposed to called) the applicant as “father” in another language; on occasions, he dropped her off at school or work and/or collected her therefrom; gifted her “some money” on her birthdays and religious holidays; took her with him on an occasion in 2020 to purchase a new car for himself; and referred to her in the other language as “my daughter” and by pet names.
Whilst, in his reply affidavit, the applicant denies that he “was part of a family unit with [the respondent] and her children”, in cross-examination, he conceded that he knew her children, and that they were sometimes present when he and the respondent were otherwise spending time together. Nevertheless, he maintained his denial that he had any particular relationship with them or that he provided care or financial support for them.
Whilst I had the impression that the applicant knew the respondent’s children better than he maintained, and that he sought to minimise any relationship with them to buttress his case, nevertheless, when I have regard to all the circumstances globally of the parties’ relationship, including (but certainly not limited to) the circumstances prescribed by s 4AA(2)(h), I am not satisfied that the extent of any care and support by him of her children, even if somewhat greater than he admitted, has any material impact on my determination of the threshold issue before the Court.
Section 4AA(2)(i): the reputation and public aspects of the relationship
The respondent’s witnesses in this regard were Ms P and Ms N, both of whom were cross‑examined. I have already referred above to some of the evidence of Ms P. For present purposes, unlike much of her affidavit, she further relevantly (and admissibly) deposes that (albeit denied by the applicant):
·shortly after meeting the respondent in Tasmania, at the end of 2016, she met the applicant, when the respondent, her children and the applicant together visited her family home to welcome her family and her to Australia; and
·after her family and she moved to Melbourne, in mid-2018, her family visited the respondent and her children about once a week and the applicant “was always present”.
Ms N, again unlike much of her affidavit, relevantly (and admissibly) deposes that:
·shortly after meeting the respondent in Tasmania, in early 2017, she met the applicant at the respondent’s home there;
·she “usually saw” the parties together at the respondent’s home in Tasmania;
·upon their arrival in Melbourne, in late 2018, her family and she were greeted by the respondent and the applicant with sweets and cakes (albeit denied by the applicant);
·she “regularly saw the [respondent] … about once a week, and … always saw the [applicant] if it was a social gathering with families” (emphasis added);
·when she visited the respondent at the Suburb U property, the applicant “was always there at the home”.
I have referred above to the unchallenged evidence of Mr G and Mr H, each of whom relevantly lived with the applicant at various times between 2016–2021, that neither of them ever met the respondent; the applicant never described the respondent to either of them as his partner; the applicant never brought any females to either of the properties which they shared with him; and, as housemates of the applicant, they each saw him on most days and regularly spent time with him, usually whilst eating dinner.
The applicant also filed and relied upon affidavits affirmed by Mr K and Mr J on 18 April 2023 and filed on that date, neither of whom was required for cross-examination.
The respondent deposes that she has never met or heard of Mr H, Mr K or Mr J and that, whilst she has heard of Mr G, she has never met him either.
Both Mr K and Mr J depose to being childhood friends of the applicant and knowing him for several decades and, relevantly, prior to 2016. Further, they both depose that they have not met the respondent and that the applicant did not describe her as his partner or former partner.
Mr K deposes to seeing the applicant regularly between late 2016–late 2021, including once or twice at a week at the Suburb BB property, which the applicant shared with other men, at his home and at other locations, such as a recreational venue in the vicinity of City X. However, there were some periods during which they only saw each other once or twice a month. He also deposes that he did not see the respondent with the applicant, either at his home or elsewhere.
Mr J deposes that, from 2012, when he moved to Australia, the applicant and he spent time with each other most weekends, usually at the Suburb BB property, where he sometimes saw the applicant’s housemates who were also from Country B, as well as at community events, such as parties and funerals, at which the applicant attended alone. He also deposes that he has not observed the applicant with any female partners, other than his wife.
The applicant submits, in his written closing submissions, that the Court can be satisfied that the parties’ relationship had no meaningful reputational public aspect to it. That is consistent with the unchallenged evidence in this regard of his witnesses referred to above.
The applicant gave evidence in cross-examination that, while he may have seen the respondent’s witness, Ms N, he did not know her. Ms N, whose affidavit had originally been interpreted to her by the respondent's adult daughter, openly conceded that she had discussed these proceedings and her evidence with both the respondent and her adult daughter prior to swearing her affidavit. The applicant expressly denied having ever met Ms P, and that evidence was not expressly challenged in cross-examination.
In relation to the evidence of Ms N, it is described by the applicant, in the written closing submissions on his behalf, as “relatively vague and unparticularised insofar as her interactions with, and observations of, the applicant are concerned”. I agree. Her evidence is of little assistance to the respondent’s case or to the Court. Insofar as she alleges that she “usually saw” the parties together at the respondent’s home in Tasmania, the frequency with which she did so is entirely unparticularised. Insofar as she alleges that she regularly saw the respondent, approximately weekly, she does not allege that, on such occasions, she always or often or even regularly saw the applicant, but only “if it was a social gathering with families”, the frequency of which is similarly entirely unparticularised. Insofar as she alleges that, when she visited the respondent at the Suburb U property, the applicant “was always there at the home”, the frequency of such visits is again entirely unparticularised. In re-examination, she was equally vague. When asked how many times she had met the applicant, her answer varied in a short space of time from “it’s hard to tell” to “maybe 10-21 times”, ultimately conceding that she could not say. Further, I infer that the counsel for the respondent saw little utility in her evidence in relation to the reputation and public aspects of the parties’ relationship as he makes no reference to it whatsoever under this rubric in his written closing submissions.
Counsel for the applicant, in his written closing submissions, submits that the “overwhelming” risk of collusion and/or contamination of evidence between Ms N, the respondent and her adult daughter renders it unsafe for the Court to place any weight upon her evidence. I accept that, given the fact that her affidavit was first translated for her by the respondent’s daughter, and that she discussed the proceeding and her evidence with the respondent and her daughter, there is a risk of contamination of her evidence. However, I do not find that risk to be overwhelming, nor does the evidence go so far as to enable me to find, on the balance of probabilities, that there has been deliberate collusion between the three of them.
Insofar as the evidence of Ms P is concerned, whilst counsel for the respondent refers thereto in his written closing submissions, under the rubric of the reputation and public aspects of the parties' relationship, he merely summarises her evidence and submits that she did not resile therefrom in cross-examination.
Counsel for the applicant, in his written closing submissions, submits that the Court can place no weight on the evidence of Ms P (which is denied by the applicant) in circumstances where, in her affidavit, she describes herself as being “very close” to the respondent’s adult daughter and, in cross-examination, said that they were “best friends” who speak two to three times per week. It is submitted on his behalf, and I agree, that she equivocated on the question as to how much she had discussed the evidence with the respondent's adult daughter.
Ms P’s evidence regarding the reputation and public aspects of the parties’ relationship is, like that of Ms N, also vague and largely unparticularised. Insofar as she alleges that she “usually saw” the parties together at the respondent’s home in Tasmania, she does not depose to the frequency of her attendances there. To my mind, nothing turns upon her assertion that, upon their arrival in Melbourne, in late 2018, her family and she were greeted by the respondent and the applicant with sweets and cakes; that was one occasion. Insofar as she deposes that, after her move to Melbourne, she “regularly saw” the respondent “about once a week”, she does not suggest that she also saw the applicant with her on such occasions or, if so, how often. Insofar as she deposes that she “always saw” the applicant at social gatherings with families, she gives no particulars of the frequency thereof. The applicant and the respondent were friends and members of the local Country B community. Accordingly, it is not unusual that she saw them both at social gatherings. Further, she does not give any evidence of, or in relation to, any public aspects of the parties' relationship that she observed at such gatherings. Insofar as she deposes that, when she visited the respondent at the Suburb U property, the applicant “was always there at the home”, she does not give any particulars of how often she did so. I also take into account my concerns expressed above regarding other aspect of her evidence and, accordingly, approach her evidence with caution.
In the circumstances, I do not find that the evidence regarding the reputation and public aspects of the parties’ relationship, such as it is, suggests that, on balance, their relationship was that of a couple living together on a genuine domestic basis such as to constitute a de facto relationship.
CONCLUSION
Having regard to all the circumstances of the parties’ relationship, including those specified in s 4AA(2) of the Act, which I have considered above, I find that they did not, at any time, have “a relationship as a couple living together on a genuine domestic basis”, so as to constitute a de facto relationship. Whilst their relationship was more than a sexual relationship, in that it commenced with and, until September 2021, remained a friendship, and may have had, to some degree, modest aspects of the circumstances specified in s 4AA(2) of the Act, I am unable to conclude that, having regard to the all the circumstances of their relationship, it was that of a couple living together on a genuine domestic basis.
Having so found, it is not necessary to engage with the provisions of s 90SB of the Act.
Accordingly, I shall make a declaration that, for the purposes of these proceedings, a de facto relationship never existed between the applicant and the respondent and I shall otherwise dismiss all extant applications, save as to costs.
I certify that the preceding two hundred and eleven (211) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 17 April 2024
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