FEDERAL MAGISTRATES COURT OF AUSTRALIA BOURKE & GOLBY
[2013] FMCAfam 228
•21 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BOURKE & GOLBY | [2013] FMCAfam 228 |
| FAMILY LAW – Property – de facto relationship – jurisdiction – respondent denies de facto relationship existed at 1 March 2009. |
| Commonwealth Powers (De Facto Relationships) Act 2006 (Tas) s.3 Family Law Act 1975 (Cth) ss.4AA, 75, 79, 90RD, 90SF, 90SM Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) Sch.1, Pt.2, Items 86, 86A Federal Magistrates Court Rules 2001 (Cth) r.10.05 Interpretation Act 1984 (WA) s.13A Marriage Act 1961 (Cth) s.5 |
| Christofis & Zorbas [2011] FMCAfam 571 Elias v Elias (1977) FLC 90-267 FO v HAF [2006] QCA 555 Houli & Laidler [2012] FMCAfam 636 Jonah & White (2012) FLC 93-522 Jonah & White (2011) FamCA 221 KQ v HAE [2006] QCA 489 Mao v Peddley [2001] NSWSC 254; [2002] D.F.C. 95-249 Moby & Schulter (2010) FLC 93-447 PY v CY [2005] QCA 247 Thompson v Department of Social Welfare [1994] 2 NZLR 369 |
| Applicant: | MS BOURKE |
| Respondent: | MR GOLBY |
| File Number: | LNC 502 of 2011 |
| Judgment of: | Roberts FM |
| Hearing dates: | 12 June & 11 December 2012 |
| Date of Last Submission: | 11 December 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 21 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr F Dixon SC |
| Solicitors for the Applicant: | Legal Solutions |
| Counsel for the Respondent: | Mr G Tucker |
| Solicitors for the Respondent: | Grant Tucker |
ORDERS
That pursuant to section 90RD(1) of the Family Law Act 1975 the Court declares that a de facto relationship existed between MR GOLBY and MS BOURKE in the State of Tasmania between April 2004 and March 2011.
That pursuant to Rule 10.05 of the Federal Magistrates Court Rules 2001 the parties and their lawyers must attend a conciliation conference with a Registrar of this Court in Launceston at 2.00 p.m. on 7 May 2013 and the parties must make a genuine effort to reach agreement in relation to the issues between them.
IT IS NOTED that publication of this judgment under the pseudonym Bourke & Golby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
LNC 502 of 2011
| MS BOURKE |
Applicant
And
| MR GOLBY |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in this matter is MS BOURKE and the respondent is
MR GOLBY. I shall refer to them as the applicant and respondent in these Reasons.
What I have to decide is the discrete issue of whether or not the applicant and respondent were in a “de facto relationship” on 1 March 2009 for the purposes of the Family Law Act 1975. That is because the answer to that question is crucial to the issue of whether or not this Court has jurisdiction.
The applicant says they were in a continuous de facto relationship from 2004 until March 2011, but the respondent says their de facto relationship ended when they ceased living together in July 2007.
The parties agree that they commenced a relationship in 2003 and that they started living together in 2004, when the applicant moved from the residence owned by her into the residence owned by the respondent. They also agree that they ceased living together in July 2007, when the applicant moved back into her own residence. They each retain ownership of their respective residences, which are approximately one kilometre apart by road in the same suburb of Launceston.
Essentially, the argument between the parties is whether their de facto relationship still existed on 1 March 2009, notwithstanding that they did not resume cohabitation in the same residence after July 2007. In short, the applicant maintains that their de facto relationship continued notwithstanding their living in separate houses, whereas the respondent maintains that they were not in a de facto relationship but their relationship was one of “boyfriend and girlfriend”.
Relevant Law
Part VIIIAB of the Family Law Act 1975 (Cth) (“the Family Law Act”) deals with financial matters relating to de facto relationships.
The Commonwealth legislature has been given power to legislate in relation to de facto relationship financial disputes because various State legislatures passed Acts referring their powers to the Commonwealth. The relevant Tasmanian Act is the Commonwealth Powers (De Facto Relationships) Act 2006 (“the Tasmanian Act”).
Part 2 of Schedule 1 of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) sets out the transitional provisions in relation to the reference of the State powers in relation to de facto relationship financial matters. By virtue of Items 86 and 86A of that Schedule, Parts VIIIAB and VIIIB, and subsection 114(2A) of the Family Law Act do not apply to de facto relationships that broke down before 1 March 2009, unless both parties make a choice for them to apply. That choice must be in writing and signed by both parties. In addition, each party must have had independent legal advice about the advantages and disadvantages of the choice, verified by a signed statement by the legal practitioner who gave the advice.[1] When that choice has been properly made, it is irrevocable.[2] However, in this matter, no such consent has been given.
[1] Item 86A(5)
[2] Item 86A(2)
Section 4AA of the Family Law Act states that two people are in a de facto relationship if:
·they are not legally married to each other; and
·they are not related by family (as defined); and
·having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.[3]
[3] Subsection (1)
That section goes on to provide that when a Court is called upon to decide whether a de facto relationship exists, the circumstances of their relationship to which the Court may have regard 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.” [4]
[4] Subsection (2)
However, subsections (3) and (4) of section 4AA provide as follows:
4AA(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.
4AA(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.
Those two subsections must make it somewhat difficult for lawyers to give advice with any degree of confidence about the existence of de facto relationships. In relation to that, Dr Anthony Dickey QC said this in an article in the Australian Law Journal (“the ALJ article”):[5]
The problem of identifying the essential characteristics of a de facto relationship is particularly acute under the Family Law Act 1975 (Cth), where the definition in s 4AA is amorphous to the point of vacuity. It says, in short, that a de facto relationship is the relationship of a couple “living together on a genuine domestic basis”, whatever that might mean. It is really not sufficient then to say, as courts too often say, that whether a couple live together on a genuine domestic basis is a matter of fact and degree in every case, for that does not answer the question of what is meant by living on a genuine basis. When a person seeks advice on whether he or she is living, or has lived, with another on a “genuine domestic basis”, a reasonably definite answer is sought, for significant financial consequences are usually involved. The identification of a de facto relationship is thus very important.
[5] (2012) 86 ALJ 163
Dr Dickey also said:
The lack of any clear criteria for the existence of a de facto relationship means that it can catch couples unawares, with possible unforeseen financial consequences. No couple can marry without both consenting to being married. Why should it be any different for entering into a de facto relationship? As the situation is at present, a couple might live together simply as a matter of convenience only to find out later that, despite how at least one of them regarded the relationship, they are deemed to have been living on a genuine domestic basis and thus in a de facto relationship. It is an obvious social fact that two people can live together in different kinds of relationships, from residing together simply as a matter of convenience or necessity, through living together in a casual sexual relationship which is not intended to be long-lasting, to enjoying a relationship which is effectively that of a married husband and wife. At what point on the spectrum can it be said that the parties live together on genuine domestic basis and therefore bring into play the legal financial consequences of being in a de facto relationship?
He went on to say this:
The definition of a de facto relationship in s 4AA is not, however, the only criterion to be taken into account. In four States there is also a constitution limitation on this notion, which is often overlooked. In New South Wales, Victoria, Queensland and Tasmania, the States’ reference of powers in respect of de facto relationships contains its own definition of a de facto relationship, and this must control the scope of the definition in the Family Law Act in these States.
Section 3 of the Tasmanian Act provides inter alia that:
de facto partner means a person who lives or has lived in a de facto relationship;
and
de facto relationship means a marriage-like relationship (other than a legal marriage) between two persons
In my opinion, Dr Dickey was correct when he said in the ALJ article that it follows that “unless a de facto relationship is marriage-like, the Commonwealth has no legislative power in respect of it”.[6] It must also follow that if the definition of a de facto relationship in the Family Law Act (i.e. “living together on a genuine domestic basis”) is in any way inconsistent with living in “a marriage-like relationship”, the concept of “a marriage-like relationship” must prevail. That is because the Commonwealth legislature cannot legislate in excess of the power specifically referred to it by the State legislature (in this case, the Tasmanian legislature).
[6] (2012) 86 ALJ 163 at page 164
In the ALJ article Dr Dickey went on to say:
This of course only raises the consequential question of what is meant by a marriage-like relationship. But at least “marriage-like” has a more definite meaning than “genuine domestic basis”, notwithstanding the plethora of cases that have attempted to consider the meaning of that expression in the context of State legislation.
I am not so sure that “marriage-like” has a more definite meaning than “genuine domestic basis”. It does not appear to be defined in the Tasmanian State legislation, so the term could be just as capable of subjective interpretation.
Although it does not apply in Tasmania, I note for example that section 13A of the Western Australian Interpretation Act 1984 (“the WA Act”) reads in part as follows:
(1) A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage‑like relationship.[7]
(2) The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential —
(a) the length of the relationship between them;
(b) whether the 2 persons have resided together;
(c) the nature and extent of common residence;
(d) whether there is, or has been, a sexual relationship between them;
(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(f) the ownership, use and acquisition of their property (including property they own individually);
(g) the degree of mutual commitment by them to a shared life;
[7] My emphasis
(h) whether they care for and support children;
(i) the reputation, and public aspects, of the relationship between them.
Again, none of the “indicators” in the WA Act is essential to the determination of whether or not a relationship is “marriage-like”. However, the list of indicators is in almost identical terms to those contained in subsection 4AA(2) of the Family Law Act. Consequently, any difference between “living together on a genuine domestic basis” and living in “a marriage-like relationship” may be more illusory than real in most cases.
The word “marriage” is defined in section 5 of the Marriage Act 1961 (Cth). It is “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. Clearly, the restriction of unions to only heterosexual couples does not apply to de facto relationships because both the Tasmanian Act and the Family Law Act specifically refer to same-sex couples. That aside, however, it is clear to me that to be a “marriage-like” relationship there must be a voluntary mutual commitment to a lasting relationship together as a couple.
Because subsections 90SM(4) and 90SF(3) of the Family Law Act mirror subsections 79(4) and 75(2) of that Act, it is clear that the financial consequences for couples in a de facto relationship can be the same as those for legally married couples. Consequently, the answer to the question whether parties were in a de facto relationship can have serious ramifications. I am therefore of the view that the person alleging the existence of a de facto relationship bears an onus to bring to Court the evidence to support its existence.
Subsection 4AA(2) factors
I propose to examine the facts of this matter in the light of the list of factors set out in subsection 4AA(2) of the Family Law Act in order to determine whether the parties were living in “a marriage-like relationship” on 1 March 2009 or not.
The duration of the relationship
It appears to be common ground that the parties were in a relationship of some sort from the time that they met in 2003 until early 2011. It is also clear that the nature of their relationship changed over that period. Two obvious changes were when the applicant moved into the respondent’s home in April 2004 and then out again in July 2007. The applicant says that notwithstanding the change in July 2007, their de facto relationship continued until March 2011, when she considered their relationship to be at an end.[8] On the other hand, the respondent says that their de facto relationship “ended in or about July 2007, being the date the applicant moved back to her premises”.[9]
[8] Paragraph 32 of her first affidavit
[9] Paragraph 3 of his affidavit
It is clear therefore that the applicant’s move back into her own home in July 2007 is at the heart of the dispute between the parties. I shall refer to that more below.
The nature and extent of their common residence
As stated, the applicant moved from her own home into the respondent’s home in April 2004 and she stayed living there until July 2007, when she moved back into her own home. Their continuous “common residence” was for a period of slightly more than three years and there is no dispute between the parties that they were in a de facto relationship for that period.
The applicant said this in paragraph 48 of her first affidavit:
From July 2007 until separation, we decided to live at separate residences. [The respondent] had physically assaulted my son … and was verbally abusive to [him] and me. We maintained our relationship however up until separation in March 2011.
To that the respondent said:
As to paragraph 48 of the applicant affidavit, I denied that I assaulted her son and was verbally abusive. I did tell the applicant and her son to leave (but in more blunt terms) in or about 2007. After that is when we became boyfriend and girlfriend. We had many separation (sic) during our time together.[10]
[10] Paragraph 17 of his affidavit
In her affidavit the applicant lists many instances when she and the respondent went away together and shared accommodation. Some of those instances involved just the two of them for short periods, but some involved longer periods and included their children from previous relationships. I do not need to detail all of the instances set out by the applicant, because the respondent essentially accepts them all to be true. However, it should be acknowledged that his counsel argued that those were not inconsistent with his claim that they were in a boyfriend/girlfriend relationship.
Senior Counsel for the applicant referred me to the decision of FM Demack in Houli & Laidler,[11] where her Honour said this at paragraph 20:
I do not consider that living together as a couple necessarily means that parties have to share a common residence on a fulltime basis.
[11] Houli & Laidler [2012] FMCAfam 636
However, I note that her Honour went on to note that the Queensland Court of Appeal considered this issue in FO v HAF,[12] and quoted paragraphs 25 and 26 of that decision as set out below:
25. In PY v CY,[13] this Court confirmed that continuing cohabitation in a common residence is not necessary to establish the continuation of a "de facto relationship" where the parties have lived together as a couple, and have not effected a permanent separation. Nevertheless, the definition of "de facto relationship" suggests that, usually, the parties should have, at some stage, been "living together as a couple on a genuine domestic basis". It must be shown that "the parties have so merged their lives … that they [were], for all practical purposes, living together as a married couple".[14] The fact that the parties have never lived together in a common abode must be acknowledged to be a strong indicator that they have not "lived together as a couple on a genuine domestic basis". This indication will be especially significant where the parties have not shared the burden of maintaining a household.
26. The circumstances of human affairs are so various that the courts should refrain from attempts to define more precisely than the legislature the kind of relationship regulated by Pt 19 of the PLA. Nevertheless, as this Court said in KQ v HAE,[15] it will be an exceptional case where two people who have not lived in a common residence, and who have not made actual provision for their mutual support, can be said to have been "living together as a couple on a genuine domestic basis". A case is not rendered exceptional in this context merely because the parties intend, eventually, to live together as a couple. That is simply a case where an existing courtship has not matured into the kind of commitment in which the parties have so merged their lives that they were, for all practical purposes, a married couple. Just as people who are affianced cannot be confused with people who are married, so people who intend to live together as a couple should not be confused with people who do live together as a couple.
[12] FO v HAF [2006] QCA 555
[13] PY v CY [2005] QCA 247 at [7].
[14] Thompson v Department of Social Welfare [1994] 2 NZLR 369 at 374; Mao v Peddley [2001] NSWSC 254 at [54] – [57]; [2002] D.F.C. 95-249 at 77,522; KQ v HAE [2006] QCA 489 at [16] – [20].
[15] KQ v HAE [2006] QCA 489 at [20].
In his submissions to me on behalf of the respondent, Mr Tucker said this:
Their de facto relationship ended when they moved apart. Certainly they had some ties and children attending at various functions or travelling overseas. Again, this is part and parcel of modern life where divorce is so prevalent and fused families but, in my submission … the evidence fails to reveal that these parties were in a de facto relationship.[16]
[16] Transcript 11 December 2012 at page 51
Mr Tucker referred me to the decision at first instance of Murphy J in Jonah & White [17] and in particular to paragraphs 60 and 66 where his Honour had said:
60. In my opinion, the key to that definition [de facto relationship] is the manifestation of a relationship where "the parties have so merged their lives that they were, for all practical purposes, 'living together' as a couple on a genuine domestic basis". It is the manifestation of "coupledom", which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
66. The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union - the merger of two individual lives into life as a couple - that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a "de facto relationship".
[17] Jonah & White (2011) FamCA 221
An appeal against Murphy J’s decision was unanimously dismissed by May, Strickland & Ainslie-Wallace JJ on 30 October 2012 and there was no apparent criticism of those paragraphs.[18]
[18] See Jonah & White (2012) FLC 93-522
In this matter too, it is important to examine “the nature of the union” and not just “quantities of joint time” spent together in the same residence.
I also note that the parties’ residences were a relatively short distance apart and they were spending regular time together working in the same business and socially with family, friends and business acquaintances.
Whether a sexual relationship existed
In relation to this factor, the applicant said:[19]
Our sexual relationship was regular throughout the course of our relationship. Our last sexual encounter was on Wednesday 22 December 2010.
[19] Paragraph 49 of her first affidavit
The respondent said this in relation to what the applicant had said:
… I accept we did have a sexual relationship even after our boyfriend/girlfriend relationship had ended. As to the exact date of our last encounter I cannot recall.
Clearly, a sexual relationship can be an indicator of the existence of a marriage-like relationship. However, I accept the submission of
Mr Tucker that it can also be consistent with a boyfriend/girlfriend relationship.
The degree of financial dependence or interdependence, and any arrangements for financial support, between them
The applicant said this at paragraph 41 of her first affidavit;
The business met a lot of our day to day expenses including the [omitted] Home loan for both [the respondent’s home] and [the applicant’s home], the rates for both properties, water usage for both properties, telephone at [the applicant’s home], internet for both properties and [the respondent]’s telephones, in addition to our combined life insurance, family cancer plan and family bodyguard personal injury plan. I met our HBA insurance (private health insurance) whilst our food and general expenses were met from my weekly wages. My personal mobile and fuel were met by my father. [The respondent] met his power bill, contributed to groceries, housekeeping, ironing, maintaining his cars - most of these expenses he paid with cash. [The respondent] never withdrew from his personal account into which his wages were paid, as this was used to meet his son’s private school fees and Child Support for his daughter.
In reply to that, the respondent said this in his affidavit:
As to paragraph 41 of the applicant’s affidavit, I accept the business virtually paid for everything. I personally paid for food and general expenses. Generally, I say everything was covered by me.[20]
[20] Paragraph 13 of his affidavit
The applicant said in paragraphs 45 and 46 of her first affidavit that the mortgage payments were made by direct debit from the business account. The respondent did not make any response to those paragraphs.
It is clear also from the evidence that the parties maintained a joint bank account until after March 2011. In addition, the tax returns produced by the applicant show that in at least one financial year they had more than one joint account. [21]
[21] See Exhibit “A1”
I accept that the husband established his business before the parties commenced their relationship. However, it is of some significance that:
·the parties were equal shareholders; and
·the applicant was a director of the relevant company between June 2007 and December 2010.[22]
[22] Paragraphs 55 and 58 of her first affidavit
That is strongly suggestive that their relationship was more than just boyfriend and girlfriend.
The evidence is clear that on numerous occasions the applicant used her credit card to pay for holidays and entertainment, and the business account was subsequently used to pay off those credit card liabilities from time to time. Although the respondent attempted to portray those payments by the business as being unauthorised, I do not accept his evidence in relation to that. On the balance of probabilities, I accept that he was aware of those payments and they formed part of the expenditure that he claimed credit for in paragraph 13 of his affidavit.
In her evidence, the applicant detailed some fairly substantial payments made by the respondent in relation to expensive jewellery that he gave to her. While I can accept that expensive gifts can be part of a boyfriend/girlfriend relationship, those payments in the context of the other financial matters referred to in the paragraphs immediately above go beyond the more usual boyfriend/girlfriend relationship.
I note also that of the respondent conceded that the applicant had been given a $2,000 Flight Centre gift card for Christmas in 2010. His attempt to portray that as a gift from his children did little to convince me that the relationship was simply a boyfriend/girlfriend relationship at that late stage (especially as the card was marked “From: [named children] and me”).[23]
[23] My emphasis
The ownership, use and acquisition of their property
It is common ground that the parties each owned a residential property before their relationship commenced in 2004, and that they still owned those properties in their individual names when these proceedings were commenced in 2011.
Although the respondent denied it, I am satisfied that the applicant used the equity in her home to raise funds secured by a mortgage in order to purchase assets for the business.[24]
[24] See paragraph 41 of the applicant’s first affidavit
The degree of mutual commitment to a shared life
As I said above, there must be a voluntary mutual commitment to a lasting relationship together as a couple for there to be a “marriage-like” relationship.
In this matter, the applicant’s commitment was never challenged. However, the respondent’s counsel sought to portray his client’s commitment as being equally consistent with a boyfriend/girlfriend relationship. He certainly gave and sent cards and notes that professed his love for her right up until 2011[25] and that is also consistent with a marriage-like relationship.
[25] See page 38 of the transcript for 11 December 2012 and Exhibit “A19”
In her first affidavit, the applicant says that they were engaged for a total of six years. She says that the respondent first proposed marriage to her in October 2005 and they became engaged again in December 2009.[26] However, in her oral evidence she amended the timing of the second engagement to Christmas Eve 2007, which she said took place at her home.[27]
[26] Paragraph 9 of her first affidavit
[27] See pages 4 and 22 of the transcript for 12 June 2012
The respondent conceded the first engagement but denied any second engagement. However, the affidavit evidence of the applicant’s mother corroborated the occurrence of that second engagement at Christmas 2007. The applicant’s mother was cross-examined and her oral evidence was consistent with her affidavit evidence.
On balance, I am satisfied that there was a second engagement in late 2007. However, an engagement per se is not necessarily conclusive of the existence of a de facto relationship In that regard, I refer again to FO v HAF where the court said:
A case is not rendered exceptional in this context merely because the parties intend, eventually, to live together as a couple. That is simply a case where an existing courtship has not matured into the kind of commitment in which the parties have so merged their lives that they were, for all practical purposes, a married couple. Just as people who are affianced cannot be confused with people who are married, so people who intend to live together as a couple should not be confused with people who do live together as a couple.
In my opinion, the fact of an engagement could signify that a relationship is not marriage-like simply because the parties are committing to get married at some stage in the future (and thereby make their relationship truly marriage-like). However, each case needs to be judged on its own specific facts.
Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
The parties did not register their relationship under any law of a State or Territory. However, that does not mean that it was not a marriage-like relationship.
The care and support of children
There are no children of this relationship but the parties do have children from previous relationships.
It is clear that the applicant continued to allow the respondent’s son to charge the applicant’s account at the school shop for significant purchases of uniforms and stationary between March 2009 and early 2011.[28] While it is likely that the business paid for all charges to that account, this is clearly suggestive of mutual support for the respondent’s son.
[28] See Exhibit “A5”
The evidence is also clear that both parties’ children accompanied the parties on holidays outside Tasmania. Those arrangements appear to have been booked by the applicant, charged to her credit card and then paid from business funds. Again, this is suggestive of mutual support for each other’s children.
The reputation and public aspects of the relationship
At paragraph 52 of her first affidavit sworn in December 2011, the applicant said:
As far as our mutual friends and family were concerned we were a couple until earlier this year.
In his affidavit sworn in January 2012 the respondent made it clear that he did not accept that. Notwithstanding that, the applicant put no corroborative evidence to the court about the reputation and public aspects of their relationship (other than her mother’s evidence to which I have referred above). In my view, if the applicant intended to convince me that she and the respondent were considered by friends to be in a marriage-like relationship, then the onus was on her to provide independent corroborative evidence of that from at least one friend.
Having said that, however, there was also an onus upon the respondent to provide evidence of something that, at least by implication, he sought to deny. During his cross-examination on the first day of the hearing, the respondent was shown a document that purported to be one that he had completed for the Child Support Agency (“the Agency”). Because I had some concerns about the authenticity of that document, it was necessary to adjourn the hearing to another day. During the adjournment, the applicant’s solicitors sought to obtain the original of that document but were unable to do so because the Agency required a signed authority from the respondent. When a request was made through his solicitors for the respondent to sign such an authority, he failed to do so. On the second day of the hearing, the respondent’s explanation of why he failed to sign and return that authority did not do him any credit. He said:
… because they had no right to have that document at all. It’s a private and confidential document and they had no right to have it, so wherever they got [the copy] from was illegally obtained, end of story.[29]
[29] Transcript 11 December 2012 at page 7
It is certainly clear that the respondent did not appreciate his obligation to provide full and frank disclosure of all relevant matters to the court. I am of the view that it is a logical inference that the respondent did not want to have the original document produced to the court because it would not have assisted his case, Further, his failure to comply with a reasonable request to provide a signed authority to the Agency enables me to have regard to the photocopy of the document, particularly because on the first day the respondent acknowledged firstly that he had signed the document but then backtracked a little by saying that the signature looked like his. The photocopy of the document is Exhibit “A14”.
Exhibit “A14” is dated 13 August 2008 and where there is a space for the person completing the form to provide the “Name of spouse/partner/defacto”, the applicant’s name had been included. The balance of the respondent’s claimed mortgage liability is also clearly the total of the mortgages over both his and the applicant’s homes.
The significance of Exhibit “A14” is that in August 2008 the respondent was prepared to name the applicant as his “spouse/partner/defacto” and to combine the liability for their two mortgages in information that he provided to the Agency. In my opinion, the ramifications of that are twofold:
·Firstly, he was prepared to represent to the Agency that their relationship was more significant than that of “boyfriend/girlfriend”, and was therefore prepared to let it be known outside the circle of the parties’ family and friends that they were in a more significant relationship; and
·Secondly, it is logical to draw an inference that it was to the respondent’s financial advantage to make such a claim, and I must therefore consider whether the Elias principle[30] should apply.
[30] Elias v Elias (1977) FLC 90-267
FM McGuire succinctly explained the Elias principle in Christofis & Zorbas[31] when he said:
Put simply, the principle is that a person should not be permitted to rely on a representation at a point in time for their own benefit and then later deny the substance of that representation so as to achieve an alternative benefit. The “principle” is not a mandatory one. It is no more than a logical and understandable consideration for a court in evaluating evidence.
[31] Christofis & Zorbas [2011] FMCAfam 571
Although Exhibit “A14” cannot in itself determine the issue of whether the parties were in a marriage-like relationship on 1 March 2009 (because it is dated 13 August 2008), it must cast doubt upon the respondent’s assertions that he and the applicant were only in a boyfriend/girlfriend relationship after July 2007.
Conclusions
In my opinion, only one of the factors referred to above suggests that the parties might not have been in a marriage like relationship on 1 March 2009; that being that they were not living together in the same residence after July 2007. However, it is clear that that factor is not necessarily determinative of the issue. Indeed, the other factors that I have examined above lead me to a firm conclusion that the parties were living together in a marriage like relationship between April 2004 and March 2011. Consequently, I will make a declaration under section 90RD(1) of the Family Law Act that a de facto relationship existed between them during that period.
In relation to that Mushin J said this in Moby & Schulter:[32]
The essential question which I am required to determine in this matter is whether the parties' relationship was a de facto relationship for the purpose of the legislation. If I determine that question in the affirmative, I am effectively determining that the Court has jurisdiction to determine an application for alteration of property interests and maintenance between the parties to these proceedings.[33]
[32] Moby & Schulter (2010) FLC 93-447
[33] At paragraph 165
The declaration that I make means that this Court has jurisdiction so the matter now needs to progress.
Procedure
I am of the view that the parties should attend a conciliation conference pursuant to Rule 10.05 of the Federal Magistrates Court Rules 2001 and make a genuine attempt to resolve the issue. Consequently, I will also make an order to provide for that.
Both parties will also have to make full and frank disclosure of their financial positions prior to that conciliation conference.
I heard this matter in Launceston but I will be delivering this decision in Melbourne by telephone link. My Associate will provide copies of these Reasons and the Orders to the parties’ lawyers in Launceston.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date: 21/3/13
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