GADSDEN & VIZE
[2015] FCCA 885
•13 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GADSDEN & VIZE | [2015] FCCA 885 |
| Catchwords: FAMILY LAW – Jurisdictional pre-requisite of de facto relationship – parties maintain separate residences – whether relationship exists-requirement by state welfare authority for the Applicant to be present – features of living together on a genuine domestic basis not present. |
| Legislation: Family Law Act 1975, ss.90RD, 90B, 90G(1C), 90RD(2)(a), 90RD(2)(d), 90RD(2)(e), 68L(2), 91B, 4AA(1), 4AA(2), 4AA(4) Federal Circuit Court Rules 2001, rr.13.10(a), 15.04(3)(b) Evidence Act 1995 (Cth), ss.4(1), 140 |
| Jonah and White [2011] FamCA 221 Moby and Schulter [2010] FamCA 748 Simonis v Perpetual Trustee Co. Limited (1987) DFC 95-052 |
| Applicant: | MR GADSDEN |
| Respondent: | MS VIZE |
| File Number: | MLC 2835 of 2014 |
| Judgment of: | Judge Stewart |
| Hearing dates: | 15 & 16 December 2014 |
| Date of Last Submission: | 16 December 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 13 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stanley |
| Solicitors for the Applicant: | Waters Lawyers Pty Ltd |
| Counsel for the Respondent: | Mr Goddard |
| Solicitors for the Respondent: | Portelli & Co |
ORDERS
The application of the Respondent for a declaration pursuant to section 90RD of the Family Law Act 1975 be and is hereby dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Gadsden & Vize is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2835 of 2014
| MR GADSDEN |
Applicant
And
| MS VIZE |
Respondent
REASONS FOR JUDGMENT
These are proceedings relating to the existence of a de facto relationship between the Applicant and the Respondent.
The substantive proceedings were initiated by the Applicant on 4 April 2014 when he sought parenting orders in relation to the parties two children X born (omitted) 2007 and Y born (omitted) 2008.
The Respondent Wife responded to the Husband’s Initiating Application seeking both parenting and property orders.
On 22 August 2014 the Husband filed an Application in a Case seeking, pursuant to Regulation 13.10(a) of the Federal Circuit Court Rules2001, that the Respondent’s application for property orders be dismissed and the Wife pay the Husband’s costs for such application.
Subsequently the Wife filed a response seeking that the Husband’s Application in a Case be dismissed and that he pay the Wife’s associated costs.
Background
The Applicant was born in (country omitted) on (omitted) 1967 and is currently aged 46. The Respondent was born on (omitted) 1972 and is 41 years of age.
It is agreed between the parties that the met via the internet in 2006.
The Applicant maintains that the parties have never lived together on a genuine domestic relationship.
The Respondent maintains that the parties commenced a de facto relationship in (omitted) 2006, which broke down in December 2013.
It is agreed between the parties that they have had a relationship.
It is agreed between the parties that their relationship has produced two children:-
a)X, born on (omitted) 2007 and now aged 8 years; and
b)Y, born on (omitted) 2008 and now aged 7 years.
The children currently live with their Father pursuant to Court orders made on 24 April 2014. They spend limited time with their Mother and require that another adult be in substantial attendance.
The Respondent has an older child, Z, who is now 13 years old.
It is agreed between the parties that save for a period of between two and four weeks in Ms J of 2007, shortly following the birth of X, that the parties have had separate homes and maintained separate residences.
It is agreed that on 3 October, 2008 the parties executed a Binding Financial Agreement pursuant to section 90B of the Family Law Act 1975 namely, a financial agreement made by them as a couple who were contemplating entering into a marriage with each other, and which evidenced an agreement with respect to how their property and financial resources were to be dealt with in the event of their marriage and divorce.
After 3 October, 2008 the parties did not marry.
After 3 October, 2008 the parties continued to maintain separate residences.
The Department of Human Services were involved with the family from 2009 until 2013. Their involvement was extensive and included a contested hearing in the Children’s Court of Victoria. As part of the Department of Human Services’ involvement the Applicant was required to provide an undertaking that he would not leave the children in the care of the Respondent for longer than one hour, unless the children were asleep.
There is a dispute between the parties as to:-
a)whether or not they were in a de facto relationship prior to 3 October, 2008; and
b)whether or not they were in a de facto relationship subsequent to 3 October, 2008;
c)if they were in a de facto relationship either before or after 3 October, 2008, the duration of that de facto relationship and when it broke down;
d)if they were in a de facto relationship either before or after 3 October, 2008, whether the Binding Financial Agreement is a binding instrument which exclusively deals with the manner of dealing with their respective property and resources following the breakdown of their relationship, thereby rendering this Court incapable of making orders with respect to property matters between them. This dispute will become relevant if a de facto relationship existed.
The Respondent’s position is she entered the agreement under either duress or coercion exerted by the Applicant. She says that the Applicant was aggressive and violent and she was not able to exercise her own free will in terms of whether or not to sign the agreement.
The Proceedings
During the proceedings, the Applicant relied on the following documents:-
a)his Amended Initiating Application filed 5 May 2014;
b)his affidavits filed on:-
i)4 April 2014;
ii)5 May 2014;
iii)22 August 2014; and
iv)24 November 2014;
c)his Application in a Case filed 22 August 2014;
d)the affidavit of (omitted) filed 9 December 2014; and
e)his Summary of Argument filed 12 December 2014.
The Respondent relied on the following documents during the proceedings:-
a)her Response filed 24 April 2014;
b)her affidavits filed on:-
i)24 April 2014;
ii)19 June 2014;
iii)19 September 2014; and
iv)4 December 2014
c)the affidavit of Ms R filed 24 April 2014;
d)the affidavit of Ms C affirmed filed 19 June 2014;
e)the affidavit of Ms A and filed 20 June 2014;
f)The Response to Application in a Case filed 19 September 2014
g)the affidavit of Ms J filed 4 December 2014;
h)the affidavit of Ms A filed 4 December 2014;
i)the affidavit of Ms W filed 4 December 2014; and
j)her Summary of Argument (undated) filed with the leave of the Court.
In the substantive proceedings the Applicant seeks that (in summary):-
a)the children live with the Applicant;
b)the children spend time with the Respondent at such times as deemed appropriate by this Honourable Court, following the release of the Departments of Human Services file; and
c)the Respondent’s application for property settlement be dismissed.
The Respondent alternatively seeks that (in summary):-
a)the Applicant’s Initiating Application be dismissed;
b)the children live with the Respondent;
c)the children spend time with the Applicant at such times as deemed appropriate by this Honourable Court, following the provision of an s.11F counsellor’s Report;
d)there be a property settlement as deemed appropriate by the Honourable Court;
e)the Respondent be excused from further particularising the orders she seeks for property adjustment until there has been proper discovery and inspection between the parties.
During these proceedings the Applicant sought that (in summary):
a)The Respondent’s application for property orders be dismissed pursuant to Regulation 13.10(a) of the Federal Circuit Court Rules 2001;
b)Pursuant to s90G(1C) of the Family Law Act 1975, the Financial Agreement dated 3 October 2008 be binding upon the parties;
c)The Respondent pay the Applicant’s costs of and incidental to these proceedings.
The Respondent sought that (in summary):
a)pursuant to s90RD of the Family Law Act 1975, the Court declare a de facto relationship existed between the Applicant and the Respondent;
b)pursuant to s90RD(2)(a) of the Family Law Act 1975, the Court declare that the period/s of the de facto relationship was at least 2 years;
c)pursuant to s90RD(2)(d) of the Family Law Act 1975, the Court declare that the de facto relationship ended after 1 March 2009;
d)pursuant to s90RD(2)(e) of the Family Law Act 1975, the Court declare that the parties were ordinarily residing in Victoria; and
e)the Applicant pay the Respondent’s costs of and incidental to these proceedings.
It has not been possible to include all aspects on which I heard, or on which there was, evidence. Nonetheless, I have taken the totality of the evidence into account. Just because I have not mentioned something in these reasons, it does not follow that I did not have regard to it.
In these reasons a statement of fact is a finding of fact.
Procedural History
The proceedings first came before the Court on 22 April 2014. On this occasion the parties attend a s.11F Child Dispute Conference, the matter was listed in the same week for Interim Hearing and the parties’ costs of that day were reserved.
On 24 April 2014 the proceedings came before the Court for Interim Hearing. Orders were made on that day of a procedural nature, including:-
a)listing the matter for a further interim hearing;
b)pursuant to s68L(2) of the Family Law Act 1975, an urgent Independent Children’s Lawyer be appointed;
c)pursuant to s.91B of the Family Law Act 1975, the Department of Human Services Victoria (“the Department”) intervene;
d)a subpoena be issued to Victoria Police in relation to the parties for the production of material;
e)That Rule 15.04(3)(b) of the Federal Circuit Court Rules 2001 be dispensed with and that the Applicant have leave to issue a subpoena to the Department; and,
f)That the children:-
i)live with their Father;
ii)communicate with their Mother by telephone on the night of 24 April 2014; and
iii)spend no time with their Mother, save and except as agreed between the parties in writing;
Is there a de facto relationship?
The first issue I will deal with is whether or not there is a de facto relationship which will found the jurisdiction of this Court.
The meaning of de facto relationship
Section 4AA of the Family Law Act 1975 provides for the meaning of a de facto relationship. Pursuant to that section a person is in a de facto relationship if:-
a)the persons are not legally married to each other; and
b)the persons are not related by family; and
c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
The Applicant and the Respondent fulfil the first two criteria. The real dispute in this case is whether or not they were a couple living together on a genuine domestic basis.
To work out whether the parties have a relationship as a couple the Court is informed by sub-section (2) which states that the circumstances may include any or all of the following matters:-
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.
Each of the parties in this case was an inaccurate historian.
It seemed to me that the Applicant’s recall was shaped by his desire to ensure that the relationship between the parties did not fall within the meaning of a de facto relationship. He had a tendency to minimise the nature of the parties’ relationship which was of no assistance at all. He was also driven by a longstanding desire to protect his financial assets from the Respondent and his evidence needs to be viewed through the prism of that desire. Rather than making appropriate concessions which would hardly have impacted in the outcome of the jurisdictional issue, he persisted in asserting statements which were inherently unbelievable and not borne out by the objective evidence.
The Respondent’s credit was also impugned. Her evidence was histrionic and exaggerated. As with the Applicant, her evidence was driven by a desire to achieve a particular legal and financial outcome although, unlike the applicant, she also seemed emotionally invested in the outcome of a decision as to whether or not a de facto relationship existed, as if that somehow would validate her position in this relationship. Her evidence was also interspersed with allegations that the Applicant was coercive, abusive, aggressive and occasionally physically violent. She said that, insofar as the existence of a relationship or otherwise is concerned, these matters were put to make explicable the fact that she signed the Binding Financial Agreement in 2008, stating that the parties were “not living together” when her position in this proceeding is that the parties were living together for the purpose of establishing a de facto relationship pursuant to the Act.
The Respondent must also overcome her conceded position that throughout the period within which she asserts the relationship, she was also in receipt of Centrelink benefits consequent upon declarations by her that she was not living with any other person. Overlaid over the veracity of the Respondent’s evidence is that she has been convicted of numerous dishonesty offences in the State criminal courts and has served a period of imprisonment in relation to some of those offences.
Counsel for each of the parties indicated that the credit of the parties in these proceedings is in issue. This much is true. To suggest that I should simply prefer the evidence of one party over the evidence of the other belies the level to which each of the parties failed to give an accurate account of their history together. In a very general overall sense, I have a preference for the evidence of the Applicant over the Respondent however some issues require individual consideration.
The parties’ relationship and the relationship itself
The Applicant’s evidence
The Applicant has not put a position with respect to the duration of the relationship between him and the Respondent. With respect to their relationship the Applicant says that:-
a)The parties met in 2006 (agreed);
b)They “never” lived together (affidavit Applicant 27 March, 2014);
c)The Respondent suffered from post-natal depression following the birth of the children and/or Y and from the time of their birth the children were spending four nights per week with the Applicant and three nights per week with the Respondent;
d)In September of 2008 the Mother threatened harm to the children and notified the Department of Human Services following which the children were placed in the full time care of the Applicant;
e)The Department of Human Services were involved with the family for five years until July of 2013 when they ceased their involvement on the basis that the Applicant was not to be allowed unsupervised time with the Respondent for more than one hour, unless the children were asleep;
f)From July until December, 2013 the children lived with the Applicant for four nights per week and the Respondent for three nights per week. The Applicant would take the children to the Mother’s home on the three nights they would spend with her but he would not leave until they were asleep;
g)In December of 2013 the Applicant allowed the Respondent to travel with the children to Queensland to see her parents. He says this occurred on the strict proviso that her parents would supervise the Respondent’s time with the children.
h)The children were returned to the Applicant in January, 2014 and spent three weeks with him until their return to school;
i)From the Applicant’s point of view the Mother found out in January, 2014 that the Respondent had “re-partnered” and intended to marry this person. At around this time the Respondent attempted to reconcile with the Applicant (from his point of view) and when this failed placed Caveats over real property owned by him. It seems that at about this time the Respondent withheld the children and allowed the Father to see the children on weekends only from Saturday afternoon to Sunday afternoon.
It is not surprising that the Applicant does not put a date on either the commencement or conclusion of any de facto relationship. It would seem from the evidence that he downplays aspects of his relationship with the Respondent. For instance he says that he would stay overnight at the Respondent’s home, not to pursue a relationship with her but rather arising out of a concern for the welfare of the children. He said that he did this when Y was eight months to a year old, so therefore between around November 2008 until March of 2009. The Applicant says that after 2009 he rarely stayed in the Mother’s home. When cross examined he did not deny that a sexual relationship continued between the parties during this period and up until 2011 or 2012, although on the Applicant’s evidence it was a rare occurrence.
The Applicant said that from the time of Y’s birth, he and the Respondent had simply attempted to work together for the sake of the children. Having regard to recital “I” of the Binding Financial Agreement, namely that the parties intend to commence living together and are hopeful of “even marrying in the future”, it is difficult to accept this version of events as being anything but a fanciful reconstruction of what was actually the nature of the relationship at that time.
Similarly, the Applicant’s assertion that the relationship was “casual, physical and nothing more than that” is at odds with the assertion in the Binding Financial Agreement as set out above. When challenged on this evidence during cross examination the Applicant steadfastly refused to acknowledge that the relationship was anything but as he had described. The Applicant even sought to assert that the parties could not spend more than fifteen or twenty minutes with each other without having an argument.
The ongoing sentiment expressed by the Applicant was that any relationship he had was merely ancillary to his concern for the welfare of the children. He said that although he was at the Respondent’s home on a few nights per week and that she cooked for him once or twice a month, he said that the Respondent did not wash his clothes except perhaps for the occasional T-shirt or other item. He agreed that he had travelled with the Respondent to Queensland on more than one occasion.
The Applicant’s evidence was exaggerated and unbelievable. For instance, although I accept that the relationship between the Applicant and the Respondent was volatile and was not satisfactory for him, I find that it was something more than he has described in both his affidavit material and his evidence.
There are however a number of factors in the Applicant’s case which are significant in the description of his relationship:-
a)The Applicant would take the children from the Respondent’s home and travel with them to his parent’s home where they would stay the night. He did this in order to be able to work and care for the children;
b)There is no suggestion that the Applicant spent any time with the Respondent without the children present in the Respondent’s home or otherwise. Thus, one of the features of a commitment to a shared life or of being a couple, namely spending some time as a couple without their children present, is absent in this relationship. I would not necessarily regard its absence as determinative, however this fact must be considered in the particular circumstances of this case;
c)On the objective and conceded evidence the Department of Human Services had mandated the Applicant’s involvement with the children and in order to fulfil his obligations and allow the Respondent to have reasonable time with the children he was required to be regularly present in the home.
The applicant’s witness
The Applicant called one witness, a Mr. S who shares the Applicant’s home in (omitted).
Mr. S is an Australian citizen who was born in (country omitted). Although he has lived in Australia for many years he has a wife and children in (country omitted) and therefore for the last six years has spent at least five to six months of each year in (country omitted) and in 2013/2014 spent 12 months in (country omitted).
Mr. S and the Applicant have formed a strong bond of friendship since the men met in the mid-eighties. For the last 20 years Mr. S has lived in the Applicant’s home when he is in Australia. Their relationship is such that he describes the Applicant as being like a brother. For instance, when Mr. S is in Australia he is not required to pay the Applicant rent.
Mr. S conceded that his ability to give evidence was limited by his absence from the home.
Mr. S gave evidence and was cross examined. He told me that:-
a)he had met the Respondent three to four times;
b)he had seen the Respondent deliver or collect the children to or from the Applicant’s home. He said that this was usually two or three times per month and took place outside of the house;
c)he had not observed the Applicant or the Respondent’s relationship as being “close or as being intimate”;
d)he had seen the Applicant and the Respondent argue “a lot”. He said he heard screaming and arguing and that he did not get involved;
e)he had not seen the Respondent stay overnight at the Applicant’s home.
When cross examined the witness said that to his knowledge the Applicant spent each night overnight in the Applicant’s home. He conceded that the Applicant would often be late home having spent most of the evening away. This witness said that he thought the Applicant was at his mother’s however this would not seem to be within his own personal knowledge at least insofar as it occurred every evening.
It was put that this witness was partisan towards the Applicant. Although I accept the witness was giving evidence on behalf of the Applicant and to assist his good friend I do not find that he was untruthful in his evidence. I accept his evidence insofar as it goes however it must be said that the limitations on the evidence are significant.
The Applicant was criticised for not calling his own parents. It was said that they should have been called as witnesses who would be in a position to give evidence as to relevant matters. I accept that they would likely have been in a position to give some evidence as to the nights the children spent with them. It is unlikely that they could have given evidence as to the day to day workings of the parties’ households, although I do draw an inference that their evidence would not have been helpful to the Applicant.
The Respondent’s evidence
The Respondent puts her case on the basis that the parties commenced their de facto relationship in (omitted) 2006, almost immediately upon meeting each other on the internet. She says that their de facto relationship continued until December, 2013.
The Respondent agrees that the only time the parties shared a single home was for a period of about one month in 2007. To that extent the parties’ evidence is similar and the difference between them is insignificant.
In her affidavit of April, 2014 the Respondent alleges that the Applicant stayed over on weeknights until approximately September or October of 2012. After sharing a residence for a short period and then retaining separate residences she says that the Applicant predominately lived at her home on weeknights and she spent occasional nights at the Applicant’s residence. From September, 2012 she says that the Applicant obtained different employment and stopped sleeping over at her residence however he “visited me and the children on almost a daily basis until mid-December 2013 when our relationship broke down completely”.
The Respondent alleges in her April 2014 affidavit that she was forced to sign the section 90B Binding Financial Agreement and that her relationship with the Applicant had been an “abusive one from the start”.
With respect to the abuse she alleges hitting, kicking, verbal abuse and spitting.
The Respondent agrees that she obtained legal advice regarding the Binding Financial Agreement from her current solicitors and said they advised her “not to sign the Agreement as they considered it to be totally disadvantageous to me and the children”. It would seem that on the strength of that advice she told the Applicant that proper provision needed to be made in the agreement for the children and his response was to “get the fuck down there and sign it”. In her affidavit she says that the Applicant threatened her with violence and she therefore decided to “keep the peace” and sign the agreement notwithstanding the advice she had received from her solicitor.
I have misgivings about the evidence the Respondent has given with respect to the Binding Financial Agreement, how it was entered into and whether the Respondent was “forced” to enter the agreement:-
a)the allegations of abuse and violence are largely general and unparticularised as to date and time, especially insofar as they may or may not have been proximate to the date the agreement was signed;
b)The Respondent’s evidence in relation to violence and coercion was different when she was cross examined. When being cross examined about her assertion that she had no choice but to sign the agreement, she said that the Applicant went “psycho” when she came back and told him of the advice she had received that the agreement needed to be amended. She said that he stood up in a threatening way when he told her to “get the fuck back down there and sign it”. When it was put to her that she had a choice she said that “He went crazy, and I honestly believed that ….my life was in danger” and therefore she had no choice. This is a significant allegation and the Respondent had made no mention of a fear for her own life in any affidavit material put before the Court. I do not accept that such a significant matter would not have been put in the Respondent’s affidavit material and I regard the Respondent’s evidence in relation to this issue as exaggerated and unreliable;
c)The Respondent was effectively cross examined about her capacity to not sign the agreement and in essence walk away. Although I accept that the Applicant wanted the Respondent to sign the agreement, and that he probably uttered the words attributed to him, I do not accept that this impeded the Respondent’s free will and capacity to decline the agreement. If the Respondent was motivated by anything at all it seems to me that she was motivated by a desire to continue the relationship and enhance it by either marriage or living together;
d)If I was in any doubt about that issue, the Respondent’s actions after the agreement would suggest that she was assertive in relation to the issue. She conceded during her evidence that directly after signing the agreement she drove to the home of the father of the Applicant and threw the agreement in his face stating words to the effect of “now you’ve got what you want”. The Respondent conceded that she was angry and told the Applicant’s father that he would not see his grandchildren again. She said that in doing so she knew that it was likely that the Applicant’s father would tell his son what had happened and that it would make the Respondent cross but that she really did not care. In my view this is inconsistent with a person who was so fearful of her personal safety at the hands of the Applicant that she felt she had no choice but to sign the agreement;
e)I also note that the agreement evidences, in the acknowledgement of advice, that the Respondent signed the document willingly, and she did so in the face of advice from her solicitor not to sign the document.
At this point the consideration of how the agreement was entered into is relevant in assessing the veracity of the Respondent’s evidence because of the recital in the agreement which in turn evidences the position that at the date of the agreement the parties were not living together, were proposing to commence living together in the future and were hopeful of even marrying in the future.
At the time the parties entered the agreement it was common ground that the parties were not “living together” in the sense that they continued to maintain separate residences. However, this is a formal document and the Respondent received legal advice at the time she entered into it. She acknowledged that she and her solicitor had been through each clause together. There was no suggestion in the Respondent’s evidence that she had provided different evidence with respect to that statement or had indicated that any of the recitals were incorrect. Nor has the Respondent called any evidence which would suggest that the statement that the parties were not living together had any meaning other than the parties were not in a de facto relationship. In circumstances where the very substance of the agreement was to make provision for property adjustment on any breakdown of the parties relationship, (putting aside issues as to enforceability of the agreement in a legal sense) I regard this statement in agreement as indicative that no de facto relationship as at October, 2008. It is inconsistent with the Respondent’s evidence.
It is also conceded by the Respondent that during the period for which she alleges a de facto relationship she was in receipt of Centrelink benefits as a supporting parent. If her evidence in this case is to be accepted she has been making false statements to the Commonwealth government for many years.
Finally, the Respondent has been convicted and served a short term of imprisonment for dishonesty offences which would tend to indicate a less than respectful regard for the merits of obeying the law.
Although individually all of the abovementioned elements might not be decisive, collectively they cause me to be cautious about the truthfulness of the Respondent’s evidence.
On balance, and although I also regard the Applicant’s evidence as having deficiencies, I tend to prefer the evidence of the Applicant except where the Respondent’s evidence is corroborated by others.
The Respondent’s witnesses
The Respondent called a number of other witnesses.
Witness Ms A
The Respondent called Ms A who knows both the Applicant and the Respondent. In support of the Respondent’s case the witness said that:-
a)she was introduced to the Applicant as the Respondent’s “partner” at a birthday party;
b)she attended the Respondent’s 40th birthday party in (omitted), 2012;
c)she attended a further celebration for the Respondent’s 40th birthday where she was again introduced to the Applicant as the Respondent’s “partner”;
d)she invited the Applicant and the Respondent to attend her own daughter’s birthday party in (omitted) 2013;
e)It was clear to her that the Applicant and the Respondent were in a committed de facto relationship. The particulars of observation set out in her affidavit are not probative of that conclusion. That statement is inadmissible and even if I am incorrect about that it should carry no probative weight to the legal question;
f)At each function the Applicant and the Respondent attended in her presence they were introduced as a couple.
During cross examination the witness confirmed that she had no personal knowledge with respect to the parties’ financial situation and the private lives with the children.
Her evidence goes to the reputation and public aspects of the parties’ relationship however it has limitations and is also consistent with the existence of a relationship which does not meet the jurisdictional threshold.
Witness Ms T
The Respondent called Ms T. She gave evidence and was cross examined.
This witness had known the Applicant and the Respondent for around 8 years. She deposes to matters relating to her observation of the Respondent and previous statements the Respondent had made to her which appears consistent with the Respondent’s statement that she had been the victim of abuse by the Applicant.
The witness said that she had attended a number of functions where she had seen the Applicant and the Respondent attend as a couple, including at the Respondent’s niece’s christening where they appeared to be a happy couple. She also attended the Respondent’s 40th birthday where the Applicant cut the cake with the Respondent and made a speech in her honour.
When cross examined the witness said that she had never been to the Applicant’s home. She also agreed that her statements as to abuse and violence were as a result of what she had been told by the Respondent rather than from her personal observations. Counsel for the Applicant made the point that at least one of the statements of abuse had not featured in the Respondent’s material.
Again, the probative part of this witness’s evidence goes to the public aspects of the parties’ relationship.
Witness Ms W
The Respondent called Ms W. She gave evidence and was cross examined.
The witness has known the Respondent since 2004. She had worked with the Respondent and became a close friend. She said that the Respondent took her into her confidence regarding problems in the parties’ relationship including a refusal on the part of the Applicant to provide the Respondent with any help for their baby and the Respondent closed her business.
The witness said that she “often” visited at the Respondent’s home and found that the Applicant was “invariably” present. The witness’s visits continued after the birth of X and Y however her affidavit evidence is lacking foundations for the conclusions she draws.
During cross examination the witness conceded that she had not been to the Applicant’s home. When she was challenged as to the number of occasions she had met the Applicant it transpired that she had met him “at least half a dozen times”. It would seem that the initial impression one gained from reading her affidavit was that she was a frequent and regular visitor to the home was false, particularly given her evidence that the Applicant was “invariably” present.
The admissible aspects of her affidavit are of little assistance to the Court in determining the jurisdictional issue.
Witness Ms R
Ms R is the Respondent’s sister. She gave evidence and was cross examined.
The witness says that she was a constant visitor to the Respondent’s home between 2006 and 2008 and from 2008 visited her sister once every two to three months. It would seem that she actively avoided contact with the Applicant from 2008 due to her view that the Applicant was abusive towards her sister.
Much of this witnesses’ evidence is clearly derived from matters which are not within her personal knowledge but rather from matters disclosed to her by the Respondent. These matters can be afforded little weight on the jurisdictional issue.
Witness Ms C
Ms C is the Respondent’s sister. She lives in Queensland. She gave evidence and was cross examined by telephone.
The witness deposes to the Applicant, Respondent, Z and X travelling to Queensland in 2007 when she met the Applicant who was introduced as her sister’s “partner”. They also returned in December, 2007 and on both occasions stayed with the Respondent’s parents.
Ms C attended Melbourne for family functions with the Respondent and observed the parties’ interacting as a couple. She was introduced to a member of the Applicant’s family.
In 2011 this witness observed the Applicant, the Respondent and the three children attend in Queensland for a brother’s wedding. During that period she observed the parties share an accommodation cottage with their children.
Later in that same year this witness spent two days at the Respondent’s home where the Applicant was present and shared a bedroom with the Respondent and she and the Respondent later travelled to (country omitted) and observed the Applicant and the Respondent interact in an affectionate way when departing at the airport. She also observed the Respondent communicate with the Applicant by telephone while in (country omitted) and purchase gifts for the Applicant.
The witness returned to Melbourne in May 2012 and said “we again stayed with the Applicant and the Respondent”. Although in this instance she makes no reference to the accommodation arrangements between the two it would seem that inferentially she observed the two parties together in the same household.
This witness was also present at the Respondent’s 40th birthday and deposes to the loving speech she observed being made by the Applicant regarding the Respondent and “saying how much he loved her as they were in a relationship as a couple and complimenting her both as a partner and as a mother”. She also says that she stayed at “their” residence during the time she was there.
In January, 2013 this witness travelled to Melbourne again and noted that the Applicant visited each day but was not present all the time. She personally observed the Applicant being verbally abusive towards the Respondent.
In April, 2013 this witness travelled to (country omitted) with the Respondent, leaving from Brisbane and leaving the three children with the Respondent’s parents in Queensland. The witness again observed regular telephone contact between the Applicant and Respondent and the purchase of gifts for the Applicant.
In December, 2013 the witness observed the Respondent and the children in Queensland and states that she was not contacted by the Applicant regarding the care of the children.
When cross examined the witness conceded that her knowledge of the household was limited to the times she had been present and was otherwise dependent on things she had been told by the Respondent.
I accept that this witness observed the parties interacting as a couple from time to time, sharing a residence from time to time and she witnessed verbal abuse by the Applicant towards the Respondent.
Witness Ms J
Ms J is the Respondent’s mother. She gave evidence and was cross examined by telephone.
Ms Vize said that she had been introduced to the Applicant by the Respondent as her “partner”. She said that when the parties stayed with her in her home they shared a bedroom and generally acted as a happy couple. She observed the parties at social events presenting as a couple. In (omitted) 2008 she observed the parties living together (although she does not say where she was staying at that time) and similarly she says she made the same observation in (omitted) 2009 when she returned for her granddaughter’s christening.
In 2010, when the Respondent was engaged in Court proceedings with the Department of Human Services regarding Z she says the Applicant kept her informed in relation to the proceedings.
The witness confirms the parties’ attendance in Brisbane for a wedding in 2011 when they shared accommodation. In (omitted) 2011 while in Melbourne, the witness was invited by the parties for dinner and the Applicant cooked. To her observation she thought the parties were in a committed loving relationship. Ms Vize says that when she called her daughter the Applicant would, on many occasions, answer the phone. She confirms that when the parties stayed in her home they shared a bedroom. She observed the Applicant’s clothes in the Respondent’s bedroom.
Ms Vize referred to the occasion in (omitted) 2013 when the Respondent and the children stayed with her in Queensland and says that, contrary to the evidence of the Applicant, he did not advise her that she should supervise the Respondent’s care of the children.
I accept Ms Vize’s evidence.
The legal issue
Before the Court considers issues as to whether or not the Binding Financial Agreement is binding on the parties as either a 90B agreement or alternatively an agreement under the Relationships Act, I must determine whether or not a de facto relationship existed between the parties at all.
The declaration of the existence of that de facto relationship is in the nature of a jurisdictional fact (see Jonah and White [2011] FamCA 221). The onus is on the Respondent to establish that the Court has jurisdiction because she asserts the jurisdictional fact. Thus, while the onus is on the Respondent to prove on the balance of probabilities that a de facto relationship existed, the Court may attach whatever weight it considers appropriate. The Evidence Act 1995 (Cth) applies (see s 4(1)) and s 140 requires the Court to apply the standard of proof which is described as the balance of probabilities.
The Court has a wide discretion in determining whether there be a declaration. The Act states at s.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.
I will consider the matters set out in sub section 4AA(2). In doing so the statements in this analysis should be regarded as a finding of fact unless otherwise stated.
The duration of the relationship
In this matter it would seem clear to me that the duration of the parties’ relationship spanned between around 2006 until sometime in 2013. It is not possible to be precise in relation to the conclusion of the relationship but suffice to say it was a period approximating seven years.
The nature and extent of their common residence
This matter has been dealt with previously. The fact that the parties maintained a separate residence, essentially for all of their relationship, is one of the factors that would suggest that the parties were not residing together on a genuine domestic basis. This issue is not determinative and the maintenance of separate residences does not necessarily preclude the existence of a de facto relationship.
The extent of the parties “common residence” and their evidence in relation to this issue has been set out earlier in these reasons. I find in this matter that the Applicant’s evidence in relation to the time that he spent at the respondent’s home at least is unreliable and likely to be underestimated. In particular I find that the evidence of Ms C and Ms J persuasive in suggesting that not only was the Applicant present at the Respondent’s home when they were present, but he was also a comfortable fixture of her home at the time they were able to observe the parties together.
I accept that the Applicant spent a greater amount of time in the home than is suggested by him. However, the Respondent also states that such time was predominately weeknight time and it seemed to be focussed around the children’s presence in the home. This case has the unusual overlay of the requirement of the Department of Human Services that the Applicant not leave the children in sole care of the respondent for lengthy periods and therefore, at least from 2009 the Applicant’s presence in the home needs to be viewed in that light. While I am not satisfied that the Applicant was wholly compliant with the Department of Human Services’ requirements, particularly when the respondent travelled to Queensland with the children, he seems to have been somewhat compliant and I note in particular, and it is agreed, that he would take the children from the home of the Respondent to spend the evening at his parent’s home during the week.
Whether a sexual relationship exists
This relationship has produced two children and the parties agree that they have had an intimate sexual relationship for many years. There is a dispute between them as to the frequency and intensity of that aspect of their relationship towards the latter part of their relationship. Both parties’ evidence regarding this was unreliable.
I find it unnecessary to making a finding regarding this issue as the determination is not persuasive as to the existence or otherwise of a de facto relationship in the particular circumstances of this case.
The degree of financial dependence or interdependence, and any arrangements for financial support, between them
There is practically no financial interdependence between the parties in this matter. Save for some periodic support provided by the Applicant to the respondent which was related to the children the parties kept separate finances and the respondent supported herself and the children with Centrelink benefits. If these parties were living together on a genuine domestic basis I would have expected to see a far more amorphous blending of day to day finances. Given the superior financial position of the Respondent and his desire to protect his financial position it is perhaps not surprising that the Respondent did not make financial contributions to the acquisition and conservation of real property. However, what is lacking in this case is any real evidence of a melding of day to day expenditure between the separate households.
The ownership, use and acquisition of their property
In this respect the Applicant’s property was retained almost exclusively by him. The evidence suggests that the Respondent was only an occasional visitor to the Applicant’s primary home, particularly in the latter part of their relationship. Although the Respondent and the children spent some time at the Applicant’s farm property I had a real sense that this was as a visitor and even on the Respondent’s case occurred relatively infrequently.
The parties did not acquire any property together during the relationship.
The degree of mutual commitment to a shared life
A significant feature of this relationship is that both parties, for different reasons, seem to regard the relationship as being very unsatisfactory from almost start to finish. Although I am satisfied that each of them have exaggerated these aspects of their case, their descriptions of their time together lacks any real sense of joint focus or a productive and meaningful relationship for either of them. The evidence suggests that their lives were enmeshed primarily for the children. Although to the outside world they presented as a couple, respecting the social norms their situation would superficially dictate, by their own accounts this presentation was merely a façade. For instance, the Applicant would make a loving speech about the Respondent at her birthday and yet there is no evidence that the parties have ever enjoyed a quiet outing or moment together which did not involve the children.
According to the Binding Financial Agreement the parties were contemplating marriage however that document evidences, and I accept, that at the time it was prepared the parties were not living together.
Apart from the recitals in the Agreement there is little evidence of anything done to action their plan and it would seem that in terms of any mutual commitment they had towards each other, that not much changed between October of 2008 and 2013.
Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
Not relevant.
The care and support of the children
This is one of the more troubling aspects of this case. Quite clearly the parties have a joint and mutual commitment to their children. They had children early in their relationship and yet have maintained separate residences throughout.
The care of the children has been detailed in the evidence and it would seem that the Respondent has some demonstrated deficits in relation to her care of the children, including Z. The Applicant says that this makes his ongoing presence at the Respondent’s home explicable and the requirements imposed by the Department of Human Services would suggest this is so. In this case, and unusually, I am not of the view that the caregiving arrangements for the children can necessarily be overly persuasive of the existence of a de facto relationship.
The reputation and public aspects of the relationship
As stated earlier in these reasons I accept that to the outside world the parties presented as a loving and committed couple. I also accept that there were elements of their relationship which presented to the outside world as being supportive of each other in an emotional and physical way. The difficulty I have with this evidence is that neither party suggest that their external appearance was a truthful reflection of what happened behind closed doors.
Conclusion
In Moby and Schulter [2010] FamCA 748 Mushin J looked at s 4AA(1) and said:
…in Simonis v Perpetual Trustee Co. Limited (1987) DFC 95-052, Kearney J agreed with the approach of Powell J referred to in the previous paragraph and held (p 75,589):
I consider that the expression under consideration constitutes a single composite expression of a comprehensive notion or concept, and therefore has to be approached by considering the expression as a whole and not in several parts.
In Jonah and White [supra], Murphy J spoke of “coupledom” and when the parties had so merged their lives that they were for all practical purposes, living together as a couple. His Honour referred to this as the “manifestation of coupledom”.
In this case I do not accept that the parties’ relationship can be described as “the manifestation of coupledom”. If anything the parties’ relationship might better be described as the manifestation of mutual discontent. They were bound together by their children which was in turn overlaid by the imposition of requirements for the care of those children by the State.
The matters set out above for consideration as set out above clearly indicate that there are some aspects of the parties’ relationship which would tend to indicate a shared life on a genuine domestic basis however equally there are some aspects which militate against that conclusion. In the overall balance, and considering all aspects of their relationship as it was described before me I am not satisfied that the parties were living together on a genuine domestic basis as is required to found the jurisdiction of this Court.
I am also persuaded that the representations by the parties made in the Binding Financial Agreement and in the Respondent’s case to Centrelink should not simply be ignored or disregarded. This does not elevate such representations to a principle of estoppel however they are two significant representations made by the Respondent against her case, one of which was made with the assistance of legal advice directed to the relationship issues.
Taking all of the matters into account in this case I decline to make the declaration as sought by the respondent.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Judge Stewart
Associate:
Date: 13 April 2015
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Standing
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Procedural Fairness
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