FRAZIER and HOLLOWAY

[2009] FCWAM 24

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: FRAZIER and HOLLOWAY [2009] FCWAM 24

CORAM: MONAGHAN M

HEARD: 14 JANUARY 2008

DELIVERED : 22 MAY 2009

FILE NO/S: PTW 5235 of 2006

BETWEEN: MR FRAZIER

Applicant

AND

MS HOLLOWAY
Respondent

Catchwords:

DEFACTO jurisdiction - whether a defacto relationship existed

Legislation:

Family Court Act 1997 ss 205X, 205Z
Interpretation Act 1984 s 13A

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr Supleglav

Respondent: Self represented litigant

Solicitors:

Applicant: DS Family Law

Respondent:

Case(s) referred to in judgment(s):

LeMay v Clark [2005] FCWA 23

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Mr Frazier] (“the applicant”) has filed an application seeking alteration of property interests on the basis of an alleged de facto relationship with [Ms Holloway] (“the respondent”). The respondent denies the existence of a de facto relationship. The matter has proceeded to trial on this preliminary issue. If a de facto relationship is found to have existed on the evidence presented at the trial, and other jurisdictional requirements are met, the applicant is entitled to proceed with his property settlement application under the Family Court Act 1997 (“the Act”). If the evidence does not establish that the applicant and the respondent were in a de facto relationship, or that the further jurisdictional requirements are not met, the provisions of the Act will not apply and any alteration of existing property interests will need to be dealt with in another jurisdiction.

2The applicant and the respondent could not be further apart in relation to the facts that would constitute the existence of a de facto relationship or otherwise.

3The applicant alleges that the parties met in 1995, began a sexual relationship soon thereafter, and in 1995 began living together in a de facto relationship in a unit in [Coastal Town A], NSW. The applicant alleges that from 1995 until June 2000 the parties lived together prior to building a house in [Coastal Town B], NSW until they separated in October 2001. It is further alleged that in August 2003 the parties reconciled and in early/mid 2005 travelled together across the Nullarbor to Western Australia as a couple. The applicant alleges that the property purchased at [Coastal Town C], as joint tenants, in or about July 2005, was their next place of residence as a couple, until separation in late June/early July 2006.

4The respondent describes the applicant as a former friend, and nothing more. She alleges that the applicant has fabricated having a relationship with her and that she has been celibate since her former de facto husband’s death in early 2001. The respondent alleges that there was no cohabitation whatsoever prior to the trip across the Nullarbor to Western Australia. The respondent alleges that during that trip the parties had separate beds and that they travelled together as “friends”. The respondent alleges that the applicant “tricked” her into purchasing the Coastal Town C property in joint names, that he made no contribution whatsoever to the property, and that at no stage through the entirety of their “friendship” were they a couple.

5The applicant relies upon his affidavits filed 18 September 2006 and 11 April 2007. He further relies upon the evidence of witnesses who gave evidence at the hearing namely [Ms Scott], [Ms Osborne], [Mr Watkins], [Mr Williamson], [Mr McKenzie], [Mr Sanders] and [Mr Warren]. He further relies on the affidavit of [Mr Gibbs] who was not sought to be cross-examined by the respondent.

6The respondent relies upon her affidavits of 24 November 2006, 19 February 2007 and 11 September 2007, together with the evidence of the witnesses who gave evidence at the trial namely [Mr Lawson], [Mr Hamilton] and [Mr Hobbs].

7Given the vast disparity between the applicant and the respondent in relation to the factual circumstances surrounding their “relationship”, I do not intend taking into account evidence of any person who was not made available for cross-examination who was otherwise required for cross-examination.

8In order to alter the proprietary interests of parties in proceedings under the Act, the proceedings must be “proceedings in respect of de facto partners, or either of them” (see s205ZG(1) of the Act). The terms “de facto relationship” and “de facto partner” are defined in s13A of the Interpretation Act 1984 (WA). That section provides as follows:

13A. De facto relationship and de facto partner, references to

(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.

(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;

(h)whether they care for and support children;

(i)the reputation, and public aspects, of the relationship between them.

(3)It does not matter whether —

(a)the persons are different sexes or the same sex; or

(b)either of the persons is legally married to someone else or in another de facto relationship.

(4)A reference in a written law to a de facto partner shall be construed as a reference to a person who lives, or where the context requires, has lived, in a de facto relationship.

(5)The de facto partner of a person (the first person) is the person who lives, or lived, in the de facto relationship with the first person.

9Once the Court is satisfied that the parties are, or were, de facto partners, the power to alter property interests in their property is dependent upon the further matters in sections 205X and 205Z of the Act being satisfied. Those sections provide as follows:

205X. People to whom this Part applies — connection with WA

Despite section 36(5), before making an order under this Division a court must be satisfied —

(a)that one or both of the parties to the application were resident in Western Australia on the day on which the application was made; and

(b)that —

(i)both parties have resided in Western Australia for at least one third of the duration of their de facto relationship; or

(ii)substantial contributions of the kind referred to in section 205ZG(4) (a), (b) or (c) have been made in the State by the applicant.

205Z. Where court may make order under this Division

(1)A court may make an order in relation to a de facto relationship only if satisfied —

(a)there has been a de facto relationship between the partners for at least 2 years;

(b)there is a child of the de facto relationship who has not yet attained the age of 18 years and failure to make the order would result in serious injustice to the partner caring or responsible for the child; or

(c)the de facto partner who applies for the order made substantial contributions of a kind mentioned in section 205ZG(4)(a), (b) or (c) and failure to make the order would result in serious injustice to the partner.

(2)In deciding whether there has been a de facto relationship between the partners for at least 2 years, the court must consider whether there was any break in the continuity of the relationship and, if so, the length of the break and the extent of the breakdown in the relationship.

(3)Subsection (2) does not limit the matters the court may consider.

10In this matter the very existence of the alleged de facto relationship is in issue between the applicant and the respondent. As it is the applicant that asserts the existence of the de facto relationship, the onus is upon the applicant to establish the relevant factors, on a balance of probabilities - see S&B [2005] Qd. R 537.

The applicant alleges the following:

1.That the parties met in 1995 at [Coastal Town D], and shortly thereafter began a sexual relationship. At the time the respondent was in a de facto relationship with her long term partner, [K], who worked away for significant periods. The applicant alleges that the parties would see each other intimately on approximately a weekly basis whilst [K] was away. In particular the applicant alleges that the respondent and he would have spas together or otherwise take trips into the forest.

2.That their relationship developed and in approximately October 1995, upon the joint intention that the parties would commence living together, the applicant left [Coastal Town D] and went to Melbourne. The applicant alleges that he and the respondent had a joint intention to start a new life together. In particular, the applicant alleges that he packed his personal possessions with a removalist company, [Company A], at [Suburb B], as did the respondent.

3.That he collected the respondent from [the Company A] depot at [Suburb B] sometime in October 1995 and drove to [Coastal Town A]. The removalists followed them, taking each of their belongings in the truck, and towing the respondent’s Nissan Patrol motor vehicle.

4.That he and the respondent then rented a unit in [Coastal Town A] and shared a bedroom. He alleges that at that stage in the relationship they had sexual relationships each day.

5.That for the next five years the parties moved up and down the East Coast of Australia. In particular he alleges that they spent three months in Sydney then rented a house at [Coastal Town E] and stayed in [Coastal Town E] for approximately fifteen months. The applicant alleges that each of the parties worked at [Coastal Town F] Tourist Park as Assistant Managers, prior to which (whilst the parties were in [Coastal Town E]) the applicant has been driving trucks for [Coca-Cola].

6.That in approximately 1997 the applicant and respondent worked together running a motel in [Country Town M]. Thereafter they moved to [Coastal Town G] caravan park and remained there for approximately fourteen months.

7.That the parties then moved to [Coastal Town H] and lived at the caravan park, as well as house sitting a farmlet in [Country Town W].

8.That the parties purchased land and built a house at [Coastal Town B], into which they moved in June 2000 until their first separation in or about October 2001.

9.That at all times the parties shared a bedroom, enjoyed social outings together, went shopping together, and had a “close, affectionate and sexual relationship”. He alleges that he enjoyed buying the respondent wine, chocolates, and flowers and that the parties exchanged cards and gifts for Christmas, Birthdays, Valentines Day and other special occasions.

10.That the parties reconciled in August 2003 when he moved back into the Coastal Town B property. He alleges that at that time the parties determined that it was “time to treat our relationship seriously and make plans for our future”. He alleges that in furtherance of this joint intention, he divorced his wife in October 2004 from whom he had been separated for some time.

11.That the parties jointly decided to relocate to Western Australia, build a house, get married and travel extensively through Western Australia. In particular, the applicant alleges that as a result of this joint intention the Coastal Town B property was prepared for sale, and sold. The property was sold, the contract of sale being dated 31 March 2005.

12.That the parties then purchased a caravan, travelled across the Nullarbor as partners, and relocated to Western Australia in early/mid 2005.

13.That the parties changed their minds about building a house, and decided to purchase an already established home. In furtherance of this joint intention, the parties first placed an offer to purchase a property at [Country Town R]. That offer was unsuccessful.

14.That shortly thereafter, the parties placed an offer to purchase the property at [Coastal Town C], which offer was successful.

15.That each of these offers were made as joint tenants in accordance with the joint intention that the parties had to live their lives together.

16.That settlement on the [Coastal Town C] property took place in July of 2005. The applicant alleges that the parties moved in and shared a master bedroom and otherwise conducted their lives as a couple.

17.Finally, the applicant alleges that separation took place on or about 1 July 2006 after the applicant was assaulted by the respondent, her son and step brother.

11The respondent’s version of events could hardly be different to the applicant’s. The respondent alleges as follows:

1.That although meeting the applicant in 1995 at [Coastal Town D], they have never had a sexual relationship and that she has been celibate since 2001.

2.That whilst in [Coastal Town D], the respondent was residing in [Property H]. The respondent says she never met the applicant there however he came over one or two times to use the spa with some friends of his. The respondent states that the spa was coin operated and between 1995 and 1997 the applicant supplied three timers for the spa.

3.The respondent states that between 1995 and 2000 the applicant never stayed with her.

4.The respondent states that she did rent a unit in [Coastal Town A] however the applicant never lived with her at that time nor stayed with her at all.

5.The respondent denies having spent three months in Sydney or living with the applicant in [Coastal Town E], or indeed, living in [Coastal Town E] at all.

6.The respondent denies ever having lived in a caravan park with the applicant.

7.The respondent denies ever having worked at the [Country Town M] Hotel or the [Coastal Town F] Tourist Park.

8.The respondent alleges that the purchase of land and construction of the dwelling at [Coastal Town B] was facilitated by herself and [K], and that the only times the applicant stayed there was on two weekends whilst he was participating in a bowling tournament.

9.The respondent denies ever having exchanging gifts or cards with the applicant and stated that the applicant has never bought her wine, chocolate or flowers.

10.The respondent admits that the parties travelled from [Coastal Town B] to Western Australia in early/mid 2005 after sale and settlement of the [Coastal Town B] property. The respondent however states that the parties travelled as friends only and did not share a bed.

11.The respondent states that she never intended for the [Coastal Town C] property to be in the joint names of herself and the applicant, and alleges that the applicant, by fraud and trickery, had his name placed on the [Coastal Town C] title.

12.The respondent alleges that the parties never shared a bedroom in the [Coastal Town C] property, that they went shopping on two occasions only [at a local shopping centre], that they socialised on four occasions only, that the applicant never cooked a meal for her, that indeed she had never seen him cook a meal in the kitchen, that they have never had a joint savings account, and that they have never been involved in an intimate relationship.

12The majority of evidence independent of the parties given at the trial in these proceedings related to the period that the parties were in Western Australia. Given the disparity between the parties recollection of “their relationship” it is necessary to consider the evidence given by witnesses called on behalf of the parties in some detail.

13In her affidavit sworn on 2 April 2007 Ms Scott states that she met the respondent at a friend’s birthday party in about February 2006. The respondent was introduced to Ms Scott by the applicant as his “partner”. The respondent did not object to that introduction. Ms Scott deposes that the applicant and respondent arrived and left together, and during the party referred to each other with terms of endearment, held hands and had their arms around each other. Ms Scott further deposes that the applicant and respondent spoke openly about their joint relationship.

14Under cross examination Ms Scott confirmed that the party was for Mr Warren. Ms Scott stated under cross examination that she and the respondent ate together on that evening. The respondent denied this. The respondent put to Ms Scott that Ms Scott only arrived as the respondent was leaving. Ms Scott denied that proposition and restated that she was at the party the entire time. Ms Scott otherwise confirmed her affidavit evidence.

15In her affidavit sworn on 2 April 2007 Ms Osborne stated that she met the respondent at a New Years Day party on 1 January 2006 at the home of Mr and Mrs [Knight]. Ms Osborne deposes that the applicant introduced the respondent to her as his “partner”. Ms Osborne deposes that during the function she and the respondent sat together. At paragraph 4 of her affidavit Ms Osborne deposes “During the afternoon, [Ms Holloway] told me and that she and [Mr Frazier] had been living together in the Eastern States and said that they were now enjoying life in Western Australia.”

16In cross-examination Ms Osborne confirmed as correct the matters contained in her affidavit although stated that she did not think she saw the applicant and the respondent holding hands.

17In his affidavit sworn on 3 April 2007 Mr Watkins deposes that he first met the respondent at a Christmas in July function at the [local bowling club] on 23 July 2005. He deposes that the respondent was introduced as the applicant’s “partner”, that he sat at the same table as the applicant and respondent, and that the applicant and respondent enjoyed dancing, eating and drinking that evening. Mr Watkins deposes that during the course of the evening they spoke about their travels up and down the east coast and the many towns they had lived in. He deposes that they spoke of their intention to travel together around Western Australia and that he had witnessed the respondent driving the applicant to the bowling club and “affectionately kissing him goodbye”.

18In cross-examination Mr Watkins confirmed that he had certainly seen the applicant and respondent “affectionately kissing.” He otherwise confirmed his affidavit evidence.

19In his affidavit sworn 3 April 2007 Mr Williamson deposes that he met the applicant and the respondent at a home inspection at a property in Country Town R in approximately June 2005. He was the real estate sales representative for the sale of that property. Mr Williamson deposes that the applicant and respondent discussed buying that property together. Mr Williamson visited the applicant and the respondent at the caravan at [Country Town P]. He observed that the caravan was “a small one bedroom van with an annex” and he observed “that there was no bed in the annex”. He had attended at the caravan to prepare an offer with respect to the Country Town R property. He deposes that as is his usual practice, he explained in simple terms the difference between making an offer as joint tenants and making an offer as tenants in common. Preparation of the documentation for the offer took approximately one hour. The offer was signed on 13 June 2005 and was annexed to his affidavit. The offer was ultimately unsuccessful however Mr Williamson saw the applicant and respondent on two occasions subsequently, including a one hour meeting with them at the Coastal Town C property. At paragraph 14 of his affidavit Mr Williamson states “On each and every occasion that I have seen Mr Frazier and Ms Holloway I have been under the impression that they were “an item”. From my discussions with them, they appear to share common goals and every time I saw one of them, the other was very near by, as one would expect of a couple.”

20Under cross-examination by the respondent Mr Williamson denied that the applicant did all of the talking in relation to the offer on the relevant property. He gave an example that the respondent spoke about the power points in the property. Answering a question from me, Mr Williamson stated that he would have left the meeting with no doubt that the respondent understood and intended to make an offer on the [Country Town R] property as a joint tenant, and knew the difference between making an offer as a joint tenant or as a tenant in common.

21In his affidavit sworn on 2 April 2007, Mr McKenzie deposes that he is a member of the [local bowling club] and that he met the applicant in about September or October 2005. Mr McKenzie deposes that he attended at the applicant’s and respondent’s residence in Coastal Town C on more than one occasion. He deposes on one occasion when he was leaving, the respondent “came outside and gave [Mr Frazier] a kiss goodbye.” He deposes that the respondent had spoken to him of the applicant’s and respondent’s plan to travel around Western Australia and that they had travelled quite a lot around the Eastern States before moving to Western Australia. He deposes that the applicant introduced the respondent as his “partner”.

22In cross-examination the respondent put all of these matters to Mr McKenzie as being untrue. Mr McKenzie denied that and confirmed that the contents of his affidavit were true and correct.

23In his affidavit sworn 3 April 2007 Mr Sanders deposes that he met the applicant and respondent in approximately October 2005. His daughter was building a property to the rear of the Coastal Town C property in which the applicant and respondent resided. Mr Sanders attended the New Years day party at the home of Mr and Mrs Knight in 2006. He deposes that the applicant introduced the respondent as his “partner” and at the conclusion of the party the applicant and the respondent offered him a lift home. He went back to their home in Coastal Town C where they had a few drinks and supper together. He deposes that during that evening both the applicant and the respondent spoke of the things they had done together in the Eastern States before moving to Western Australia. Mr Sanders deposes that during the time that he knew the applicant and the respondent there was “never any doubt in my mind that they were a couple. They acted, socialised, lived and talked like a couple who had spent many years together”.

24Under cross-examination by the respondent Mr Sanders gave specific detail about the New Years day party. He recalled, for example, being driven into the garage and other details. In cross-examination he stated that he had met the respondent more than two times and that on a number of occasions the respondent had dropped him at the local bowling club. At no time did Mr Sanders resile from his sworn statements in his affidavit.

25Mr Warren swore an affidavit on 2 April 2007. Mr Warren deposes that he met the applicant at the local bowling club in July 2005. He attended the Christmas in July function in 2005 and was introduced to the respondent by the applicant as the applicant’s “partner”. During that function he deposes that he “saw [Mr Frazier] buy drinks for [Ms Holloway], saw them eat together and mix together as a couple.” He deposes that he had many conversations with the applicant at the Bowling Club and the applicant had spoken of their travels in the East Coast and their plans for the future. The applicant and respondent attended Mr Warren’s 60^th birthday party in February 2006. Mr Warren deposes that they arrived at the party together and spent the night “mixing, eating, drinking and joining in general conversation with other party guests”. Mr Warren deposes that he introduced Mr Frazier to several of his guests and in turn “observed [Mr Frazier] introduce [Ms Holloway] as his “partner”.” The applicant and respondent left the party together. Mr Warren further deposes that on a number of occasions between July 2005 and August 2006 he met the applicant and the respondent at the local shopping centre and that on all occasions “they showed affection to each other, walked together, shopped together, travelled together and in general conversation with me, spoke of “our house” and “our car”.”

26Under cross-examination by the respondent Mr Warren confirmed that the invitation to his 60^th party was addressed to “[Mr Frazier] and partner”. Mr Warren also stated that he saw the respondent pick up the applicant from the local bowling club on “many occasions”. He did not resile from any of the matters deposed to in his affidavit.

27Mr Gibbs swore an affidavit on 7 March 2007. The respondent did not seek to cross- examine Mr Gibbs. She stated that the entirety of Mr Gibbs’ affidavit were lies. She was of the view that Mr Gibbs had wanted an intimate relationship with her, which never eventuated. In his affidavit Mr Gibbs deposes that he is a long term friend of the applicant and the respondent. He states that he is now retired, his last position before retiring being the Police Senior Sergeant in Coastal Town D, Victoria. He deposes that he is actively involved in the community which is a small tight knit community.

28He has known the applicant since the early 1960’s. He has known the respondent since 1973/1974. He deposes that in or about 1995 the relationship between the applicant and the respondent was the subject of considerable amount of “gossip around the community” as the respondent was otherwise in a relationship. At paragraph 11 he deposes “In late 1995 [Ms Holloway] left [K] and she and [Mr Frazier] went away together.” He deposes that shortly after their departure the respondent telephoned him at home and advised that she and the applicant were in [Country Town T]. He deposes that he advised the respondent to “break off her relationship” with the applicant and return home to her partner. He deposes that the respondent replied with words to the effect of “I am not coming home. I have left [K] for good. I want to be with [Mr Frazier].”

29He deposes that in approximately 1999 he and his wife attended a bowling tournament in Coastal Town H. It transpired that they were staying in a caravan site just a few sites from where the applicant and the respondent were residing. Mr Gibbs and his wife went to the applicant and the respondent’s van for dinner. The applicant and the respondent discussed their plans to buy or build a house together in the area.

30Some time in the following year, Mr Gibbs attended a bowling tournament in Southern New South Wales where he again met up with the applicant. The applicant invited him to dinner “at the home where he and [Ms Holloway] were house sitting.” During discussions on that occasion it appeared clear to Mr Gibbs that the applicant and respondent were in a relationship.

31Mr Gibbs deposes that K died in a car accident in 2001 and that the applicant and respondent were living together in Coastal Town B at that time and that they returned to Coastal Town D for the funeral. He deposes that in that year, whilst attending a bowling tournament, he stayed with the applicant and the respondent at their home in Coastal Town B for 2 nights. He deposes as follows:

“I slept in the second bedroom and they slept together in the master bedroom. Once again, there was no doubt that they were a couple. When they spoke of their home and belongings, they referred to them as “ours”.

32Mr Gibbs deposes that in or about early 2005 he spoke to the applicant and the respondent at the local bowling club, where they advised him that they had sold their house in Coastal Town B, had purchased a caravan and were moving to Western Australia.

33Mr Gibbs otherwise did not hear from either the applicant or respondent until speaking with the applicant on the phone in approximately December 2006.

34The failure of the respondent to seek to cross examine Mr Gibbs produces a result that I accept Mr Gibbs’ evidence.

35Mr Lawson gave evidence on behalf of the respondent. Mr Lawson executed a letter dated October 2006 and a Statutory Declaration on 9 September 2007. He confirmed the contents of those documents as true and correct under oath.

36Mr Lawson was the listing agent for the Coastal Town C property. He deposed that the applicant did the negotiations in relation to the purchase. He became the respondent’s neighbour in September 2006, after the applicant ceased living in the Coastal Town C property. He gave evidence that he was “flabbergasted” at the behaviour of the applicant, as explained to him by the respondent.

37The contract for the purchase of the Coastal Town C property is exhibit A1 to the respondent’s affidavit filed 19 February 2007. It is clearly in the joint names of the applicant and the respondent. Their address is noted as “[c/- Country Town P Post Office]”.

38Under cross-examination Mr Lawson confirmed that he had taken the respondent’s word as to the state of affairs between herself and the applicant, and had subsequently structured his Statutory Declaration on the basis of her representations to him. Mr Lawson in cross-examination confirmed that he did explain to the applicant and the respondent the difference between joint tenancy and tenants in common, and that the respondent had “no hesitation” in signing the contract to purchase the property.

39Mr Hamilton swore an affidavit on 19 October 2007 on behalf of the respondent. Mr Hamilton deposes that he met the applicant and the respondent in about May 2005 at the caravan park they were then living in whilst their property was being built. Mr Hamilton’s evidence is that during the conversations and time spent with the applicant and respondent during that period there was no indication that there were anything other than travelling friends, and that they were introduced as “each other’s close friend”.

40Under cross-examination Mr Hamilton stated that it was at the [Coastal Town S] Caravan Park. He stated that from his recollection there were separate sleeping arrangements in the van of the applicant and the respondent. He stated that he has kept in touch with the respondent but not the applicant. On 23 October 2005 the applicant and the respondent went to Mr Hamilton’s wife’s birthday party.

41Under cross-examination Mr Hamilton revealed that the respondent had typed his affidavit, after he had wrote it at his home. He explained that the respondent had told him that the applicant was trying to take the Coastal Town C property from the respondent. He stated under cross-examination that from conversations that he had had with the respondent he knew that this was not true, nor was it fair, and that the applicant had made no contribution to the Coastal Town C property. He stated that he did not see any physical affection between the parties, and that they had been at that caravan park for just over one week.

42Mr Hobbs, the respondent’s son, swore an affidavit on 16 October 2007 in support of the respondent. Mr Hobbs states in paragraph 3 of his affidavit that towards the end of summer 2005 his mother advised him that the applicant was going to “share the driving across the Nullarbor with her, and that he was going to fly back to Victoria after the trip.” He states that the applicant and respondent left New South Wales on the last day of April 2005. He states “My mother payed for her trip in her caravan, and her 4WD car.” He states “The Applicant [Mr Frazier] was to help, just with the DRIVING.” Paragraph 5 of the affidavit provides as follows:

“After my mother moved into her new home, she wanted to sell her caravan, she gave [Mr Frazier] a room for a bed, so he moved in, staying a lot longer than what we thought.

I now know the trouble he gave my mother and grandmother its very disturbing to think a man, a so called friend, has done such bad, offensive things.”

43Paragraph 6 of the affidavit provides as follows:

“MY mothers health, her peace of mind, her security, her trust in people has gone. For the Applicant [Mr Frazier] to put his name on my mother’s house deed, I am Bewilded. My mothers security has been placed in jeopardy since [Mr Frazier] drove her into hospital, on her return he had moved out and stolen much of her new valued, and family possessions. Since this happened, he has fabricated his story to cover his illegal dishonest deeds.”

44The respondent wrote to each of the applicant’s witnesses after she had read their affidavits. An example is the letter from the respondent to Mr McKenzie being Annexure “C” to the applicant’s affidavit sworn 13 April 2007. The respondent admitted writing to all of the witnesses, saying “I thought they needed to know the truth”.

DOCUMENTARY EVIDENCE

45A number of documents were referred to or otherwise put into evidence in relation to the nature of the relationship between the applicant and the respondent.

46As discussed above, the applicant and the respondent made 2 offers to purchase properties in Western Australia.

47The first offer was in relation to a property in Country Town R. The agent who assisted the applicant and the respondent in making that offer, Mr Williamson, was a witness on behalf of the applicant. Mr Williamson gave evidence that he explained in simple terms to the applicant and the respondent the difference in making an offer as joint tenants and tenants in common.

48The applicant and respondent were successful in the offer they made to purchase the Coastal Town C property. The agent that assisted them with that purchase, Mr Lawson, gave evidence for the respondent. Mr Lawson gave evidence that he explained in simple terms to both the applicant and the respondent the difference between making an offer as joint tenants and tenants in common. After giving the explanation Mr Lawson gave evidence that the respondent had no hesitation in executing the offer.

49The respondent alleges that the applicant got his name on the title of the Coastal Town C property by fraud and trickery. I do not accept this proposition on the evidence. The respondent is a competent and capable adult. Two separate agents explained to her the various ways that offers to purchase a property may be made. On each occasion the respondent signed the offers as a joint tenant with the applicant. I do not accept the respondent’s explanation that if it had been explained to her it would have “gone over her head”.

50In evidence during the trial the respondent stated that the applicant and respondent had never had a joint savings account together, and that she did not “acknowledge” that a joint home loan account was opened secured over the Coastal Town C property. Documents from the ANZ Bank showed that the home loan was in joint names and the statements issued in joint names. Documents were also shown to the respondent evidencing an interest savers account in the joint names of the parties.

51The ANZ file, received pursuant to subpoena, was entered into evidence as Exhibit A. In that file is a letter from the applicant to the bank dated 9 September 2005, explaining to the bank his bankruptcy in 2000. The application was made in the context of an application for $40,000.00 to be secured over the Coastal Town C property. The bank was concerned about the applicant’s bankruptcy. Part of the letter written by the applicant is as follows:

“I am now in a partnership which is very fulfilling. I might still have my ailment but life is a lot brighter these days. I feel [Ms Holloway] has been a very good and loyal customer for 10 years and I feel she should not be punished for wanting a few extra improvements on the home just because I had a rough trot for a few years. Also by our application there is no money owing on the house and on our joint income we are well and truly able to service this loan.”

52On 27 July 2005 the applicant filled in a declaration to the Department of Veterans Affairs disclosing his address as [Property M] and that he was in a de facto relationship. Annexure A to his trial affidavit is a statement from Centrelink showing his marital status as “de facto”. Cards were issued accordingly.

53Finally, the respondent was shown an invoice from Rick Hart disproving her claim that there had never been joint purchases made by the applicant and the respondent.

CONCLUSION ON DE FACTO RELATIONSHIP

54I conclude that the applicant and the respondent were in a de facto relationship as alleged by the applicant. I so conclude as:

1.The affidavit of Mr Gibbs was not challenged by the respondent, which affidavit establishes on a balance of probabilities that the parties were in a de facto relationship prior to coming to W.A.

2.The applicant’s witnesses from the [Coastal Town M area] all deposed that the applicant and the respondent were living together as a couple. Particularly I take into account the evidence of those witnesses who saw the applicant and the respondent holding hands, being affectionate to each other and kissing each other, contrary to the strong denials of the respondent.

3.Having had the intricacies of making offers to purchase property explained to her on 2 occasions, the respondent without hesitation executed offers as joint tenants with the applicant to purchase property.

4.The respondent’s case was that the applicant was fabricating all of these alleged facts so as to falsely establish a de facto relationship so as to be able to make a claim against the Coastal Town C property. Documentary evidence shows that the applicant referred to the respondent as his de facto partner in documents and to witnesses on many occasions prior to the date of separation.

5.The respondent was shown documents disproving her strong denials that the applicant and respondent did not have a joint home loan, joint interest savers account or made joint purchases together.

55I therefore find that the parties were in a de facto relationship between October 1995 and October 2001, which resumed in August 2003 until mid 2005 when the parties travelled to Western Australia. The de facto relationship continued until 1 July 2006.

SECTION 205X

56As stated above, a Court may only make an order for alteration of property interests arising out of de facto relationships if:

1.Both parties have resided in Western Australia for at least one third of the duration of their de facto relationship; or

2.Substantial contributions of the kind referred to in s205ZG(4)(a),(b) or (c) had been made in the state by the applicant.

57The de facto relationship, prior coming to Western Australia, between the applicant and the respondent was from October 1995 to October 2001 and from August 2003 to mid 2005, a period of approximately 8 years. The issue as to whether the 2 periods are to be aggregated was dealt with by Thackray J (as he then was) in LeMay v Clark [2005] FCWA 23. In that case his Honour had to consider, for the purposes as to whether a de facto relationship had lasted 2 years, the effect of a break in the relationship. At paragraph 29 of the judgment his Honour states:

“I suspect it would only be a lawyer (or judge) who would be tempted to think L & P had 2 different de facto relationships. Anyone else who knew them would simply have seen them getting back together and resuming their original relationship. To use the words of Master Macready of the NSW Supreme Court in McKone v Maretta (1999) DFC 95-213, “In one sense having resumed their relationship one might regard it as a continuance of what was the former de facto relationship which existed …”.

58His Honour continues at paragraph 35 as follows:

“Although the remarks I have highlighted are only obiter, I consider they point to a better way to conceptualise cases in which there is a break in the continuity of a de facto marriage relationship. Although the de facto marriage may appear to have ended when one party withdraws from the relationship, later events may demonstrate that the relationship was not, in fact, at an end. Instead the parties resume or to use Cohen J’s word “renew” their de facto marriage relationship”.

59Pursuant to this authority I must aggregate the periods of the de facto relationship that the parties had which were not in Western Australia. That aggregate is 8 years. The parties were together for just over 1 year in Western Australia. The parties, on the applicant’s own case, therefore did not reside in Western Australia for at least one third of the duration of their de facto relationship.

60I am however cognisant that the aggregation issue was not considered nor canvassed by either party at the hearing. I consider justice requires that I give each party the opportunity of making submissions in relation to whether the periods should be aggregated or not. In the case of the applicant, if it is sought that I do not aggregate the periods, I require submissions as to the precise dates under which the parties could be found to have been in a de facto relationship at least one third of which was in Western Australia.

61Upon receipt of the submissions, or at the expiration of 28 days, whichever is the earlier, I will then consider the submissions and give further reasons and consequent orders.

62For those reasons there will be the following orders:

1.Within 14 days the Applicant file and serve written submissions confined to the issue as to whether for at least one third of their de facto relationship the parties resided in Western Australia.

2.Within 14 days thereafter the respondent file and serve any answering submissions in relation solely to the issue.

I certify that the preceding [62] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Secretary