Fawcett and Gaussen - [2012] FMCAfam 396

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FAWCETT & GAUSSEN

[2012] FMCAfam 396

FAMILY LAW – Existence of defacto relationship.

Family Law Act 1975, ss.4AA, 8AB, 90RD, 90SM

Applicant:

MR FAWCETT

Respondent:

MS GAUSSEN

File Number:

SYC 3192 of 2011

Judgment of:

Altobelli FM

Hearing date:

19 April 2012

Date of Last Submission:

19 April 2012

Delivered at:

Sydney

Delivered on:

20 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr Levy

Solicitors for the Applicant:

Crawford Ryan Lawyers

Counsel for the Respondent:

Mr Millar

Solicitors for the Respondent:

Paul & Paul Lawyers

ORDERS

THE COURT DECLARES:

The existence of a de facto relationship between the Applicant and Respondent, which ended not before August 2009.

THE COURT ORDERS THAT:

The parties be referred for a Conciliation Conference on 20 June 2012 at 2:15pm with a Registrar.
The parties comply with Rule 24.04 of the Federal Magistrates Rules by serving on each other copies of the documents listed in that Rule by no later than 4.00 p.m. 14 days prior to the conference date. Namely:
(a)Copies of 3 most recent taxation returns;
(b)Copies of 3 most recent taxation assessments;
(c)If the party is a member of a superannuation plan:
(i)if not already filed or exchanged – the completed superannuation information form for any superannuation interest of the party;
(ii)for a self-managed superannuation fund- the trust deed and copies of the 3 most recent financial statements for the fund;
(d)If the party has an ABN, copies of the last 4 business activity statements lodged, if any, and:
(e)The 3 most recent financial statements and the last 4 business activity statements of any partnership, trust or company (other than a public company) in which that party has an interest.
The Applicant is to file and serve written submissions as to costs not exceeding 500 words within 14 days.
The Respondent is to file and serve written submissions in reply not exceeding 500 words within a further 14 days.

IT IS NOTED that publication of this judgment under the pseudonym Fawcett & Gaussen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 319 of 2011

MR FAWCETT

Applicant

And

MS GAUSSEN

Respondent

REASONS FOR JUDGMENT

I provide the following oral reasons in the matter of Fawcett & Gaussen, a matter that I completed hearing yesterday.
Both the applicant and the respondent seek declarations under section 90RD of the Family Law Act about the existence of a de facto relationship. The declaration that the applicant seeks is about the existence of the relationship between the applicant and the respondent between 1995 and late August 2009. The respondent seeks a declaration that the de facto relationship which existed between the parties prior to 1 March 2009 had ceased prior to that date. If I make the declaration sought by the respondent it will follow that this court has no jurisdiction to hear the claim.
The applicant is a (occupation omitted). He is 46 years old and lives in (omitted). The respondent is a (occupation omitted). She is 56 and lives in (omitted). The relationship commenced as late as April 1996 or as early as 1995, and in these proceedings, nothing turns on that.
By way of an application filed 23 May 2011, the applicant seeks orders for division of property under section 90SM of the Act, and by way of the response filed 20 July 2011, the respondent seeks dismissal and the declaration, the effect of which I have made reference to.
The applicant asserts a date of separation of about August 2009 and the respondent asserts a separation of about December 2008. The significance of this, of course, is that part VIIIAB of the Act governing financial matters in de facto relationships only applies, for relevant purposes, if the relationship was in existence after 1 March 2009. Whether or not the de facto relationship so existed is a finding of fact. The relationship is defined in section 4AA of the Family Law Act, the terms of which I incorporate into these oral reasons, and that is the main issue in this case.
The evidence before me consisted of affidavits filed by the applicant and by his witness, Mr G. I was also greatly assisted by a case outline and written submissions filed on behalf of the applicant. The respondent’s evidence consisted of her affidavits and the affidavits of her two witnesses, Ms Gaussen and Ms T, and I was also assisted by the case outline filed on her behalf.
The applicable law is principally section 4AA of the Act, but Mr Levy in his summary of argument referred to a number of cases to which I have made some reference in preparing these reasons. The only observation I make in relation to the applicable law is I am still not convinced in my own mind that the law relating to separation for the purposes of dissolution of marriage necessarily applies in the context of determining whether or not a relationship for the purposes of section 4AA existed or does not exist. On the facts of this case, it does not matter, but I am just not sure to what extent we can borrow the jurisprudence from one area and simply apply it in another. My sense is that it is really a question of statutory interpretation. In any event, that is by the by.
I want to start by dealing with credit issues. In some respects, this is a finely balanced case. In other respects, it is not. There are certain matters that I have taken into account in finding that where the applicant and respondent’s evidence is inconsistence, I prefer the evidence of the applicant. The first factor that I take into account is this. At the end of 2011, the respondent unilaterally converted her (omitted) superannuation entitlement from a lump sum to a periodical pension without giving notice to the applicant, either before she did so, at the time she did so, or afterwards. She agreed in cross-examination that she was concerned that the applicant would get or might get part of her superannuation entitlement. Nonetheless, she denied that that was the reason why she made the change. Curiously, no evidence was led in re-examination that might explain why she did make that change. Counsel for the applicant says that this behaviour goes to the credit issue. Counsel for the respondent says it is irrelevant. Credit, of course, means whether or not I should accept the evidence of a witness on a particular issue or generally. Credit findings assume a much greater significance in finely balanced cases such as this one.
If a party to litigation has failed to do that which a party is obliged to do, it reflects poorly on their credit. In this case, the respondent swore a financial statement on 26 July 2011 in which she acknowledges awareness of rule 13.04 and her obligation to make full and frank disclosure, an obligation which according to the rules is clearly an ongoing one. She has unilaterally changed the character of her superannuation entitlement from lump sum to periodical, and to that extent, affected it. The precise consequences of doing this are not known. Her actions nonetheless reflect poorly on her and creates the possible impression that she is willing to do things that she thinks advances her case. Her denial that she made the change because of her concern that the applicant would get some part of her super is unconvincing in circumstances where she had the opportunity to explain why she made the change but did not.
The next relevant factor arises out of the evidence the respondent gave that she last changed her superannuation beneficiary nomination in 2008, shortly before what she considered to be her separation from the applicant. She deposes to making her daughter X a 100 per cent beneficiary. It was, at least inferentially if not expressly, a part of her case that this act was consistent with her view of the separation from the applicant taking place at that time. The date at which she made this change in nomination becomes a relevant factual issue. She was cross-examined about this. When challenged about not deposing to the date of the change of nomination, she explained that she had been waiting for the statement but had not received it. When pressed, however, in cross-examination she eventually conceded that she had not in fact asked for the statement, but indeed she could have if she had wanted to. Whilst she denies that she did not obtain a copy of the nomination because it would not help her case, the observation I made is that at least in this respect of her cross-examination she was evasive. Again, this detracts from her credibility.
I also found the respondent unresponsive at times in cross-examination, the clearest example of which was the cross-examination in relation to the nomination form when it took several answers before she finally conceded that there was no way that the applicant could have known what she did as regards her nomination except by reading it in her affidavit.
By contrast, I never had any concerns about whether the applicant was telling me the truth as opposed to whether he had a poor recollection of dates, especially dates early in the relationship, which dates have no bearing on the issues before the Court. I accept Mr Levy’s description of the applicant as an impressive witness who gave direct and unequivocal answers except in relation to the dates of the commencement of the relationship and of the first separation, but none of which is relevant to the issue I need to decide.
Section 4AA of course refers to a number of circumstances and provides a useful template from which to assess the evidence in this case. It refers to the duration of the relationship. The applicant’s case is that the relationship ended at the end of August 2009. He sets out his evidence in this regard, and there can be no doubt from his evidence that at that time both he and the respondent knew that as a result of moving out of the home the relationship had ended. Now, whilst the respondent asserts the relationship had ended earlier – in fact, much earlier – she does not dispute the factual matters asserted by the applicant as to his leaving the home, never to return. She cannot dispute that this act constituted the single greatest change in their lives in terms of how they had lived their lives up until that point.
The respondent’s case is that separation took place in November 2008, but nowhere in the respondent’s evidence is there an assertion that she expressed any intention to end the relationship or communicated it to the applicant. Indeed, the respondent’s case in this regard was expressed by her counsel in his closing submissions when he said – and I quote:
It should have been obvious.
Presumably, she asserts it should have been obvious because of what she asserts were the factual changes in how they lived their lives that were referable and explicable only to there having been an end to their relationship in November 2008. As it turns out and as I will discuss below, even if there were changes in the relationship that the respondent asserts were explicable only by reference to her belief that the relationship had ended in November 2008, this was a matter in respect of which she bore the onus of proof. She has failed to discharge that burden. Her failure to lead evidence that before 1 March 2009 she had firstly formed the intention to end the relationship and secondly communicated that to the applicant and acted on it means that the relationship could not have ended as she herself asserts.
The next consideration is the nature and extent of common residence. I think that this means more than just living in the same house but involves considering the nature and the quality of the lives that they lived whilst in the same physical space. Until the return from the Bali trip in August 2009, the evidence indicates as follows: that they both lived in the same house, they had gone on a holiday together and they slept in the same bedroom. Apart from times when the applicant slept in a spare bedroom or another bedroom, generally following arguments. They shared parenting and homemaking roles. There was social interaction between them, both inside and outside the home. She cooked for him and they ate together, with a few exceptions. Even putting aside the fact that I prefer the applicant’s evidence over that of the respondent when it is inconsistent, even the respondent’s evidence alone goes a long way to establishing the common interwoven nature of their common residence. Again, she bore the onus of proof to establish that the common residence ended in 2008. She has failed to discharge this. He bore the onus of proof to establish the common residence ended after 1 March 2009. He has indeed established that it did not end till August 2009.
The next factor is whether a sexual relationship existed. The evidence here conflicts. The respondent says that there had not been sex for the six-month period before May or June 2009, which is, interestingly, a timeframe coinciding neatly with what she asserts was the date of separation. The applicant says that the last sex occurred in Bali on his birthday, 22 July, a day that he says he remembers. He asserts that they had sex in the shower. In cross-examination, she denied they had sexual intercourse. The cross-examination of the respondent did not explore whether, if there was sex, it was other than intercourse. On the respondent’s own evidence, however, there was a discussion about sex in May or June 2009. If there was an earlier discussion about this topic, the respondent does not say. I infer that there were no such discussions. She agreed in cross-examination that the conversation arose because the applicant had asked for sex. She agreed in cross-examination that this conversation was the first time she told him she did not love him. Quite apart from the obvious significance of this evidence in terms of it being a communication by the respondent to the applicant of her feelings as to the end of the relationship, it is noticeable that they were having conversations about a sexual relationship six months after the applicant said the relationship was over. Mr Levy, counsel for the applicant, submits that this is an indicia of the continuance of the relationship. In the circumstances, I can only agree. It simply makes no sense that the applicant and respondent would be having this sort of conversation if, as she asserts, the relationship had been over for six months.
Notwithstanding this, the question I must decide is whether a sexual relationship existed as at 1 March 2009 and not whether sex took place on the Bali trip in August 2009, as exotic as it might be to make findings in that regard. You see, even if I accept the applicant’s evidence that sex did take place as he asserts in the shower in Bali, it does not establish that a sexual relationship existed. I can make no findings on the evidence before me. This particular circumstance is, in any event, not determinative.
The next factor is the degree of financial dependence. Even in the respondent’s own evidence, there is a high degree of financial interdependence until at least August 2009. The cost of the Bali holiday was shared. Household finances were intermingled. Payments of the mortgage were shared. Utility costs were shared. Cost of groceries were shared.
All of the evidence in this case indicates that right up until August 2009, there was a degree of financial interdependence and commonality that strongly points to the existence of what the Act defines as a relationship of a couple living together on a genuine domestic basis. There is no way that I can interpret this evidence as consistent with the respondent’s assertion that separation took place in 2008.
The next factor is ownership, use and acquisition of property. The respondent certainly continued to own the relevant property and no property was acquired as such during the relevant period. The real issue is whether the use of the property throws some light on the nature of the relationship they had.
If the respondent’s case is accepted at face value, she was separated from the applicant by the end of 2008 but did not ask him to leave after then. Indeed, there is no evidence that she considered in her own mind that the relationship with the applicant, in terms of the use and occupation of the home, had changed. For example, there was no evidence to suggest she had thought, let alone communicated to him, that his status had changed to that of a boarder or tenant or something else.
He says he continued to do renovations on the home until August 2009. She admits that, at the very least, he did some cladding to that part of the side of the house. He says he was working in the garden until August 2009, and she did not challenge him on this.
The respondent’s evidence at paragraphs 21.4 and 21.5 of her affidavit is interesting in this regard. She admits that in August 2009, they had an argument about his plan to build a shed in the backyard. Looking solely at the respondent’s own evidence as to what happened on the day of the argument in question, she never asserts to the applicant that he should not build because the relationship was over. All she says is based on her concerns as to the impact of this construction on the landscaping. This, again, is an indicia in my mind that even from the respondent’s perspective, the applicant’s continued use of the home was more consistent with him being her de facto partner than any other scenario.
The next factor is degree of mutual commitment to a shared life. This is a circumstance that lends itself to much subjectivity. I have no doubt that:
(1)the applicant felt that the mutual commitment to a shared life did not cease until August 2009;
(2)the respondent felt that this ceased in December 2008; and
(3)there were strains in the relationship from the period before December 2008 through to August 2009 that would have imposed pressures on this mutual commitment.
But this case cannot be decided by subjective considerations. The question is viewed objectively from the perspective of an external observer: when did the acknowledged existing de facto relationship lose that important aspect of mutual commitment to a shared life? One must look at how they lived their lives in the relevant period.
The applicant and his witness, Mr Chambers, gave evidence that their relationship continued as normal. In particular, I accept Mr Fawcett’s evidence that at or about the time of the Bali holiday, all seemed normal with the family consisting of the applicant, respondent and X.
The respondent’s witnesses gave evidence, but what is most significant is what they don’t say rather than what they do say. Given the closeness of these witnesses’ relationship with the respondent, and given the evidence of the intimate conversations that took place between them - and in this regard, Ms T told me that the respondent had positively asserted to her that she and the respondent did not have sex in Bali, just as an example of the intimacy of the conversations - it is significant that neither of these witnesses deposed to any assertion by the respondent that her relationship to the applicant had ended. They do depose to unhappiness in the relationship, but that in itself does not indicate an absence of mutual commitment.
Perhaps the Court is, in fact, in the best position to make an objective finding on such subjective issues. Looking at the evidence as a whole, and even taking into account the subjective beliefs of both parties, the fact is there is no objective indicia to indicate any significant, noticeable change to the degree of mutual commitment to a shared life before August 2009. In short, life appears to have gone on as normal. I accept that it may well have been for one or both of them an unhappy life, but it was nonetheless a shared life which, viewed from the perspective of someone looking into the fishbowl, appeared to have a degree of mutual commitment.

The next consideration is cost and support of children. It is common ground that right up until August 2009, both parties were involved in the care of their child, X. Indeed, there is no evidence advanced to suggest that X was aware that, as her mother asserts, she and her dad were separated. On any objective appraisal of the facts, the Bali holiday in July/August 2009 would have clearly signalled to her, that is to X, that mum and dad were still together. This circumstance clearly points to the continuation of the de facto relationship up until August 2009.
The last consideration is reputation and public aspects. The evidence of Mr Chambers was that at July/August 2009 the family, consisting of the parties and X, travelled together. The applicant asserts - and I prefer his evidence in this regard over that of the respondent - that they had a social life that involved, for example, going out for meals to local restaurants.
There was evidence that the applicant was not present at Christmas celebrations in 2008, which the respondent asserts is consistent with the end of the relationship at the time. But this fact is neutral. Their separation, in a physical sense, at Christmas time 2008 could just as equally have been referable to the respondent travelling elsewhere as a result of a death in the family. On balance, the evidence of the Bali holiday itself suggests that this was a joint holiday and that the parties presented as a couple.
I do not accept the evidence of the respondent’s witnesses detracts from the weight to the above circumstances. Viewed objectively, the facts suggest that up until August 2009, a reasonable observer of this relationship would have thought that it was still intact and, indeed, did not end, as the respondent asserts, in 2008.
So what are my conclusions about the evidence and the findings I make? I accept that no particular finding in relation to any circumstance is to be regarded as necessarily deciding whether persons were in a de facto relationship, but here the situation is different because the evidence indicates that almost all of the circumstances enumerated in section 4AA subsection (2) point towards the maintenance of the pre-existing de facto relationship beyond 1 March, and which ended not before August 2009.
I intend to make a declaration that a de facto relationship between the applicant and the respondent ended in or about August 2009. The focus of the evidence was not so much on when the relationship started, so I decline to make a declaration in that regard.
The Court declares the existence of a de facto relationship between the applicant and the respondent, which ended not before August 2009.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Date: 2 May 2012