Emer & Caris

Case [2024] FedCFamC1F 251

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…

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AGLC
Emer & Caris [2024] FedCFamC1F 251
Case
[2024] FedCFamC1F 251
Decision Date

CaseChat Overview and Summary

In the matter of Emer and Caris, the applicant sought a declaration that he and the respondent were not in a de facto relationship. The respondent, on the other hand, sought a declaration that they had been in a de facto relationship from late 2016 until September 2021, along with an alteration of property interests. The central issue was whether the relationship between the applicant and the respondent met the legal criteria for a de facto relationship under s 4AA of the Family Law Act 1975 (Cth). This included examining whether the relationship was as a couple living together on a genuine domestic basis.

The court examined the evidence presented by both parties, focusing on the duration and nature of their relationship, as well as other relevant factors such as shared financial responsibilities and the degree of mutual commitment. The respondent claimed that the relationship began with a ceremonial marriage in late 2016, a claim that the applicant strongly denied. The court found the respondent's claim implausible and unsupported by evidence, leading to a rejection of this aspect of her testimony. The court concluded that, despite the existence of a friendship and sexual relationship, the relationship did not meet the statutory requirements for a de facto relationship. The court found that the relationship did not have the character of a couple living together on a genuine domestic basis, as required by s 4AA(2) of the Act. Adverse findings of credit were made against the respondent and her witnesses, further supporting the court’s decision.

Consequently, the court declared that no de facto relationship existed between the applicant and the respondent. All other applications were dismissed except for those related to costs. The court ordered that any party seeking an order for costs must file and serve written submissions and supporting material within 14 days of the order, with any opposing submissions to be filed and served within 28 days. The court also certified that it was reasonable to engage counsel for both parties. The decision underscores the necessity for a relationship to meet specific legal criteria to be recognised as a de facto relationship under the Family Law Act.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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).