GAMMON & LOCKWOOD - [2015] FCCA 1300

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAMMON & LOCKWOOD

[2015] FCCA 1300

Catchwords:
FAMILY LAW – De-facto relationship – where applicant seeks a declaration pursuant to section 90RD that the relationship was “a de-facto relationship” – where parties in a relationship from September 2003 until September 2012 – consideration of the whole of the facets of their relationship – whether the parties were living together on a “genuine domestic basis” – onus of proof lies with the applicant – applicant establishes de-facto relationship.

Legislation:
Family Law Act 1975 (Cth) Part VIIIAB, ss.4AA, 90RD, 90SM, 90SF

Cases:
Allenby v Kimble [2012] 49 FamLR15
Betts v Sheriff [2012] FMCA Fam 617
Elwood v Fisher [2012] 48 FamLR 398
Fenton v Marvel [2013] 51 FamLR 142
Jonah v White [2011] FamCA 221
Jonah v White [2011] Fam CAFC 200 45 FamLR 460
Jonah v White [2012] 48 FamLR 562
Kazama v Britton [2013] 48 FamLR 664
Lee v Hutton [2013] 50 FamLR 322
Owens v Benson [2014] Fam CAFC 243
Sinclair & Whittaker [2013] Fam CAFC 129; (2013) FLC 93-551
Taisha v Peng [2012] 48 FamLR 150

Applicant:

MS GAMMON

Respondent:

MR LOCKWOOD

File Number:

NCC 2038 of 2014

Judgment of:

Judge Coakes

Date of Last Submission:

18 February 2015

Delivered at:

Newcastle

Delivered on:

29 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr W Tregilgas

Solicitors for the Applicant:

Braye Cragg Solicitors

Counsel for the Respondent:

Mr A Mooney

Solicitors for the Respondent:

Brennan Tipple Partners

ORDERS

That pursuant to section 90RD of the Family Law Act 1975 (Cth) the Court declares that the applicant MS GAMMON and the respondent MR LOCKWOOD were in a de-facto relationship which commenced in September 2003 and continued until September 2012 and the Court declares further that there was no child of the de-facto relationship and that the de-facto relationship took place in the State of New South Wales.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2038 of 2014

MS GAMMON

Applicant

And

MR LOCKWOOD

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern a preliminary issue of the nature of the relationship between the applicant and the respondent.
By her application filed in this Court on 11 August 2014 the applicant sought final orders as follows:
i)That the respondent husband make full and frank disclosure as pursuant to the Family Law Rules 2004 as (sic).
ii)That the applicant wife be granted leave to amend her application upon disclosure pursuant to order 1 above.
iii)That the respondent husband pay to the applicant wife the sum of $135,000.00 within 42 days of the making of these orders.
In his response filed on 15 September 2014 the respondent sought the following orders by way of interim relief:
i)A declaration under Section 90RD that a de facto relationship never existed between the parties or, in the alternative, if a de facto relationship is found to have existed that it terminated more than two years before the application was filed as required under Section 44(5).
ii)The applicant’s application filed 11 August 2014 be dismissed.
iii)The applicant pay the respondent’s costs of the proceedings.
In the same response the respondent sought final relief that:
i)The applicant’s application filed 11 August 2014 be dismissed.
ii)The applicant pay the respondent’s costs of the proceedings.
At the first directions hearing on 17 September 2014 the matter was listed for hearing on 2 December 2014 as to the discrete issue of whether a de facto relationship existed.
Whilst the applicant did not file and serve an amended application by 17 October 2014 in accordance with the directions of the 17 September 2014 it is clear that when the hearing commenced on 2 December 2014 the issue before the Court was whether or not a de facto relationship existed between the parties and that by inference the applicant was seeking a declaration pursuant to Section 90RD of the Family Law Act 1975 (Cth) a de facto relationship existed between the applicant and the respondent.
It was clear also on the material filed by the parties and not put in issue by Counsel at the commencement of the hearing that a further discrete issue has arisen, namely whether leave was required to bring the application if it was found that a de facto relationship existed following an assertion by the respondent that the relationship ended on 31 July 2012 whereas the applicant contended the relationship ended on 20 September 2012.
It follows that if a de facto relationship was declared to exist the date of separation arose as a further issue for determination, but following the close of each case and during submissions Mr Mooney for the respondent properly conceded that separation took place in September 2012 in the sense of the relationship coming to an end irrespective of the nature of the relationship.

Background

The chronology of events which follows is largely uncontroversial except when stated.
The applicant is 65 years of age and the respondent is 67 years of age.
It is agreed the parties met in 2003 at an (over 50’s) function in (omitted) and a few months later the respondent invited the applicant to stay, or on the applicant’s version, live with him at Property A.
It is the applicant’s case that the relationship between her and the respondent was a de facto relationship and continued without interruption from September 2003 until 20 September 2012. The respondent asserts the relationship was not a de facto relationship but a business partnership and commenced at the same time and concluded on 31 July 2012 but conceded through his counsel during submissions that it came to an end in September 2012.
At the commencement of the relationship the applicant either owned or had interests in the following assets:
a)A studio apartment owned by her at Property P purchased in late 2000 at a cost of $129,000.00 with a mortgage to the (omitted) Bank for about $60,000.00, with an estimated value of $165,000.00 and subject to a mortgage of about $5,800.00 with an equity of approximately $159,000.00.
b)A property at Property C, with an estimated value of $90,000.00 subject to a mortgage of about $12,000.00 and with a nett equity of about $78,000.00.
c)Savings of about $45,000.00 in a fixed term deposit with the (omitted) Bank.
d)1,862 shares in (omitted) worth about $8,362.00.
e)312 shares in (omitted) with an estimated value of $1,000.00.
f)700 units in (omitted) Fund with an estimated value of $1,250.00.
g)Managed funds invested with (omitted) with a balance of $3,500.00.
The applicant asserts she had interests in three separate superannuation funds as follows:
a)(omitted) Super Fund, estimated $132,000.00;
b)(omitted) $5,000.00;
c)(omitted) $11,000.00
At the commencement of the relationship the respondent owned a house at Property A in New South Wales, having acquired such property in about 1997, and also owned a townhouse at Property B in Queensland, having acquired such property in about 1996. There is no evidence before me as to the value of such properties or the equity held by the respondent at the time of commencement of the relationship.
On 24 July 2003 the parties exchanged contracts[1] for the purchase of a 3 bedroom townhouse at Property I, at a purchase price of $182,000.00, purchased by the applicant as to a 45% share, her son X a 5% share and the respondent a 50% share as tenants in common in those shares. This property was let.
[1] See Exhibit A1.
In January 2004 the applicant obtained a transfer with the (employer omitted) from (employer omitted) to (employer omitted) where she took up part time employment of two days per week which sometimes could be more or less. The applicant asserts that she lived with the respondent at his home at Property A, occasionally visiting friends elsewhere, whereas the respondent asserts the applicant only stayed while she was working and did not live with him.
In late 2003 or the latter part of 2004 the respondent purchased a villa at Property T, in his own name for the purchase price of $90,000.00. There was no evidence before me as to how the purchase was funded.
In March 2006 the applicant and the respondent purchased a residential unit at Property H as tenants in common as to 70% to the applicant and 30% to the respondent. The purchase price was $165,500.00 of which the applicant contributed $115,850.00 and the respondent contributed $49,650.00. Of those contributions, the applicant gave a mortgage to (omitted) Credit Union (now (omitted) Credit Union) for $102,400.00 and the respondent gave a mortgage to the same mortgagee for $30,000.00. The respondent sold his Property B property but there is no evidence as to the net proceeds of sale.
The applicant and the respondent paid their respective mortgage repayments individually but had a joint and several liability had one defaulted. Overheads including body corporate fees, rates and any other liabilities were paid by each of the parties proportionately in accordance with their share of ownership.
The property at Property H was let to the Housing Commission for two years and the rent distributed to the applicant and respondent in the same ratio as their ownership. The parties remained living at Property A, subject to the respondent’s assertion that the applicant only stayed there.
In mid-2007 the respondent suffered a kidney stone attack and was taken to (omitted) by ambulance and later transferred to (omitted) Hospital where the applicant visited and stayed overnight driving the respondent back to (omitted) the next day. The respondent then returned to Property A by coach.
In October 2007 the parties together purchased a three bedroomed villa at Property S at a cost of $215,000.00 of which the applicant contributed $71,595.00 and the respondent contributed $143,405.00 owned as to one-third share by the applicant and two-thirds share by the respondent as tenants-in-common in those shares. The applicant funds her purchase from her line of credit from the (omitted) Bank. The respondent secures a loan from the (omitted) Bank secured by mortgage over both Property A and Property S.
The parties together occupied Property S as their home, disputed by the respondent, vacating the small rented (omitted) flat which the applicant had found and rented for about five months whilst they were looking for further property to purchase in (omitted) and reside together at Property S. They are visited by the respondent’s sister Ms M and her husband Mr J from the (country omitted) who stayed with them.
In January 2008 the respondent sells his property at Property A for approximately $467,000.00 after listing the property for sale in late 2007. There is no evidence as to the net proceeds of sale which the respondent received.
In early 2008 the respondent suffered a heart attack in (omitted) and was taken by ambulance to (omitted) Hospital. and then to (omitted) Hospital where surgery was performed and a stent inserted.
In July 2008 the applicant retired and received a retirement pension from (omitted) Super averaging $850.00 per fortnight and after withdrawal of a lump sum of $37,500.00.
In March or April of 2008 the villa at Property S is listed for sale but is not sold for about 2 years.
During 2009 the townhouse at Property I is sold for $232,000.00 with the respondent allocated $116,000.00 from the proceeds of sale before costs were taken into account with the balance of $116,000.00 allocated to the applicant and her son X, again before costs, and with the applicant retaining her son’s share of the proceeds by agreement between them.
In late-2009 or early-2010 the respondent purchases in his own name a residence at Property W at a cost of $325,000.00 funded by the respondent initially with bridging finance.
At the same time the Property S villa was being prepared for sale and the parties moved temporarily to the unit at Property H then vacated by the Housing Commission and with some personal property and possessions moved to the Property W property upon completion of the purchase.
In late June or beginning of July 2010 the villa at Property S was sold for $242,000.00 with the net proceeds divided in accordance with the share of ownership with the applicant receiving $81,000.00 and the respondent approximately $162,000.00 which the respondent applied towards discharging the bridging finance for Property G with a small residue to him.
It is disputed whether the parties lived together at Property W but it is not in dispute that the respondent lived there and that the applicant moved her personal possessions and a table into such property and stayed there from time to time. The parties continued to stay occasionally at Property H.
In July 2011 the applicant purchased a 55% share in a unit at Property H from Ms J and Mr G who retained a 45% interest in the property. The applicant paid $70,125.00 using funds from the (omitted) Bank line of credit.
In March 2012 the applicant sold her studio apartment at Property P for approximately $210,500.00.
In May 2012, the parties together enjoyed a holiday cruise occupying the same cabin.
In early September 2012 the applicant purchases the respondents 30% interest in the unit at Property H paying the respondent $50,000.00.
It is the applicant’s case that separation occurred on 20 September 2012.
The respondent asserts the relationship ended in June 2012, but later conceded through his counsel that the end came in September 2012.
On (omitted) 2013 the respondent married Ms G in (country omitted). On (omitted) 2013 the respondent’s wife registers with the Registrar of Births Deaths and Marriages in NSW a change of name to Ms G.

The Applicant’s Case

It is the applicant’s case that she and the respondent enjoyed a de-facto relationship as a couple living together on a genuine de-facto basis from September 2003 until 20 September 2012 and that during that relationship they lived variously at Property A near (omitted), Property H and Property W.
It is also the applicant’s case that throughout the totality of the relationship it was an exclusive sexual relationship between them, that they conducted household finances together and shared financial arrangements introducing the various assets they owned or to which they were entitled at the commencement of the relationship and utilising those assets ultimately during the course of the relationship.
It is also the applicant’s case that the parties engaged together in the purchase of residential real estate for either occupation or investment to create wealth.
It is also the applicant’s case that the parties had a mutual commitment to a shared life together and identified publicly as a de-facto couple.

The Respondent’s Case

It is the respondent’s case that the relationship between the parties was one of friendship and continued from September 2003 until June 2012 but was not at any stage a de-facto relationship and with the parties maintaining separate residences, but with daily telephone communication, a number of overseas trips and a sexual relationship.
It is the respondent’s case that the parties together bought real estate for the purposes of investment, rental and capital growth but not for the purposes of a joint home or residence.
It is the respondent’s case that the parties did not have any joint finances other than to purchase and sell investment property and with the applicant paying a daily contribution to the respondent for each day she spent at his residence to cover costs.
It is the respondent’s case that the parties did not have a common residence at any time during their relationship and that the applicant stayed at the respondent’s home in the (omitted) district only when she was working in the local area in her part-time position at a (employer omitted).
It is the respondent’s case that their friendship did not convert to a life commitment and that any public reputation or aspects of their relationship was as a business partnership to make money from the purchase, rental and sale of real estate.
It is also part of the respondent’s case that he submitted to Centrelink when reporting property transactions that the parties were not in a de-facto relationship.

The Issues

The issue, quite simply is whether the applicant can establish, and the onus lies with her that the parties lived in a de-facto relationship as a couple living together on a genuine domestic basis for the period she asserts or, whether on the other hand, as the respondent asserts the parties enjoyed a long friendship brought into being purely for the purpose of investing in real estate and making transactions accordingly.
Initially, a secondary issue was whether, if there was a de-facto relationship, the date of its conclusion and whether the applicant brought her application within the time required by the legislation, that is, within 2 years of the cessation of the relationship although this ceased to be a germane issue at the conclusion of the hearing.

The Evidence

In the applicant’s case I read the following affidavits as sought by her:
a)Her affidavit sworn 8 August and filed 11 August 2014;
b)Her financial statement sworn 8 August and filed 11 August 2014;
c)Affidavit of Mr P affirmed 14 October 2014 and filed 17 October 2014;
d)Affidavit of Mr K affirmed 29 September 2014 and filed 17 October 2014;
e)Affidavit of Ms J sworn 16 October 2014 and filed 17 October 2014;
f)Affidavit of X sworn and filed 17 October 2014;
g)Affidavit of Ms J sworn 25 November 2014 and filed 28 November 2014;
In the respondent’s case I read the following documents:
a)His affidavit sworn 12 September and filed 15 September 2014;
b)His financial statement sworn 7 November and filed 10 November 2014;
c)Affidavit of Mr B sworn 11 November 2014 and e-filed 10 November 2014 (sic);
d)Affidavit of Mr C sworn and e-filed 10 November 2014;
e)Affidavit of Mr M sworn 13 November 2014 and e-filed 10 November 2014 (sic).
There were the following exhibits:
a)A1-first page of contract of sale dated 24 July 2003 for Property I;
b)A2-handwritten letter by the respondent to the applicant undated;
c)A3-greetings card from respondent to applicant undated “Happy Birthday” printed in the (country omitted);
d)A4-a picture postcard of (country omitted) with six pictures franked (country omitted);
e)A5-copy of front page of contract for sale of real estate dated 24.07.03;
f)A6 – contract for sale of land Property H with applicant and respondent address as Property A and dated 31 January 2006;
g)Consumer credit contract schedule with (omitted) Bank with borrowers named as applicant and respondent.

The Relevant Law

Section 4AA of the Family Law Act 1975 provides as follows:

De facto Relationships

Meaning of de facto relationship

(1)A person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); 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.

Paragraph (c) has effect subject to subsection (5).

Working out if persons have a relationship as a couple

(2)Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;

(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.

(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(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.
(5)For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

When 2 persons are related by family

(6)For the purposes of subsection (1), 2 persons are related by family if:
(a)one is the child (including an adopted child) of the other; or
(b)one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c)they have a parent in common (who may be an adoptive parent of either or both of them).

For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

Section 90RD of the Act provides as follows:

Declarations about existence of de facto relationships

(1)If:
(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;

the court may, for the purposes of those proceedings (the primary proceedings ), declare that a de facto relationship existed, or never existed, between those 2 persons.

(2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b)whether there is a child of the de facto relationship;
(c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d)when the de facto relationship ended;
(e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.

Note: For child of a de facto relationship, see section 90RB.

The Federal Circuit Court was granted jurisdiction to hear and determine property cases arising from a de facto relationship where a couple have a relationship as a couple living together on a genuine domestic basis which was in existence at 1 March 2009 and continued from that date.

Credibility

A case of this nature involves consideration of a number of evidential matters as asserted by each party to be followed by the Court making findings of fact which ultimately will be critical in establishing whether the applicant or the respondent succeeds with their respective case.
It is the civil standard of proof which applies, namely that the onus lies with the applicant to prove on the balance of probabilities that a de facto relationship existed between her and the respondent.
I was left with the distinct impression that both parties and their respective witnesses did their best to be truthful, but there were occasions when each relied more upon a reconstruction of past events rather than an accurate recollection. This of course is understandable when parties are required to recall specific events as to when and where they took place, conversations, whether other people were involved and asking the Court to make findings of fact based on such evidence.
I was left with the distinct impression that the applicant was a better historian of events with a fairly accurate recall of the chronology of significant transactions. However, this was offset by the applicant’s propensity to avoid giving a direct answer when asked a relatively straight forward question. The applicant displayed an acute tendency to make a speech about what she thought may be an appropriate answer having, in my view, interpreted the question from the cross examiner or any other questioner as an attempt to lead her to giving an answer which she did not wish to give.
It was necessary for me to warn her repeatedly to listen to the question and answer the question. To that extent, her unclear answers to many questions detracted in some instances from the value of her evidence as an historian. In listening to her answers, I searched for an explanation as to why, given her considerable experience as a (occupation omitted) she would respond as she did, but at the end of the day, I came to the conclusion it was part of her innate character.
I was left with the impression that the respondent did not seek to mislead the Court or deliberately give an unreliable account but his recollection was often faulty and where there is conflict between the parties about the same matter, I tend to prefer the applicant’s evidence about the same issue, although I have considered each matter where credit arises on its individual merits.
The respondent’s unreliability is best illustrated by two instances. The first occurred during his evidence in cross examination concerning the events following his discharge from the (omitted) Hospital in (omitted) in 2008 after surgery for a heart attack and his evidence that his friend Mr C picked him up and took him back to Property S as opposed to the applicant who said that it was she who took him back to Property S and continued to care for him. Whilst it is true that the respondent was not 100% sure as to his recollection of Mr C taking him back to Property S, I was left with the distinct impression that he rejected the applicant’s version entirely.
Mr C gave evidence in the respondent’s case and said during cross examination very clearly that he had not visited the respondent at either (omitted) Hospital or at (omitted) Hospital but had picked him up from the hospital in (omitted) and taken him back to Property A. Whilst he could not recall when this occurred, he thought the respondent was in the hospital at (omitted) for something to do with his stomach and certainly not his heart. I found Mr C to be a credible witness and have no hesitation in accepting his evidence as to this issue.
The second illustration flows from the transaction between the applicant and the respondent when the applicant paid the respondent $50,000.00 for his interest in Property H, which the respondent readily agreed he received in September 2012. The respondent then told Mr Tregilgas that following the payment, the respondent told the applicant that he then regarded the relationship as over, and which he said took place probably one month later. The respondent was very clear to say in cross examination that it was after he had received the money that he terminated the relationship because he wanted to make sure he received the money first. His earlier assertions that separation took place in June 2012 or on 31 July 2012 when he packed the applicant’s car with her belongings were clearly wrong.
The task ahead of me is to weigh the whole of the evidence which it seems to me can best be done by taking an aerial view of the whole of the relationship and its various facets and to make findings accordingly, conscious of subsection (3) of Section 4AA, which provides that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
As to credibility, His Honour Justice Murphy said in Jonah v White[2] when considering such matters:
“The issue here is, in my view, not so much the veracity or reliability of the parties accounts of events, but, rather, the picture presented by the totality of them and the conclusions resulting therefrom.”
[2]Jonah v White [2011] FamCA 221
His Honour Justice Murphy also said in the same case:
“I consider that the evidence of each of the parties was affected significantly by the fact that their recollections now, in respect of events past, was refracted through the prism of their own perceptions of the relationship and the varying degrees of disappointment felt by each at its demise…”
I am reminded of the reference by His Honour Justice Murphy to the definition of the relationship when his honour said in Jonah v White[3]:
“In my opinion, the key to that definition [de facto relationship] is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.”
[3] Paragraph 60 of Jonah v White [2011] FamCA 221
Similarly, I note the observation by the Full Court in Sinclair v Whittaker[4]:
“Given the nature of the definition of a de facto relationship in the Act, the ultimate decision is to whether there is a de facto relationship at any given time is a matter for the Court and not a matter for the parties. Although their perception of the nature of the relationship is a relevant matter, it is not determinative.”
[4] Sinclair & Whittaker [2013] Fam CAFC 129; (2013) FLC 93-551

Discussion

Whilst the list is not exclusive, it seems to me it is constructive to consider the matters set out in Section 4AA.
First, it is not in dispute that the parties were not legally married to each other and were not related by family.

Duration of the Relationship

I find on the evidence that the relationship commenced in about September 2003 following their meeting and introduction to each other in about May of that year and continued unabated until September 2012, and which I find on the balance of probabilities was 14 September 2012 when the respondent informed the applicant she had to leave the Property W home.
Whilst there was a deal of evidence about where the parties stayed from time to time, the geography of the relationship commenced in Property P, moved to Property A near (omitted), then to Property H, then to Property W on the (omitted) where it came to an end.
There was no disturbance to the period of the relationship in the sense of breakdown or separation.

Nature and extent of their common residence

In the early days of the relationship, the applicant would visit and stay at the respondent’s home in Property A and the respondent would visit Sydney, and if not staying with the applicant at various places would stay with his son. There is a dispute as to whether the respondent asked the applicant to move to Property A to live with him, or whether the applicant asked the respondent whether she could stay with him. It is immaterial to determine that issue. The fact is, and I find accordingly, that the applicant stayed with the respondent at his home in Property A and in July 2003 let her unit at Property P to Mr T, who subsequently purchased the unit from her.
This was a relationship where the applicant maintained a number of friendships in Sydney, (omitted) and elsewhere, and frequently visited her friends and stayed with them. The applicant had also established a social organisation called “(omitted)”, which entailed monthly meetings or thereabouts, usually in Sydney and which the applicant together with the respondent on some occasions attended.
The applicant worked as a (occupation omitted) at (employer omitted) from the beginning of 2004 for two days per week or sometimes a little more or a little less, and which continued until her resignation in July 2008, although in the few months or so leading up to her resignation she was working less and taking advantage of some accrued leave.
The evidence establishes that the applicant moved her personal possessions including clothing, shoes and personal effects to Property A. The applicant’s mailing address was the respondent’s residence at Property A until she established a post office box in (omitted).
I find that the applicant shared a residence and lived with the respondent at Property A until their move to Property H.
In October 2007 both parties occupied Property S upon its purchase, with the respondent selling his home in Property A early in 2008 and making Property S his home. I find on the evidence that the applicant also made Property S her home and that she moved her personal effects and her table to that property.
The applicant continued with her ‘(omitted)’ activities and visiting her friends with the respondent joining her on some occasions. During this time, some of the respondent’s relatives from the (country omitted) visited Australia and stayed with them.
In late 2009 or early 2010, the respondent purchased the residence at Property W, requesting the applicant to join with him by paying 50% to share the purchase price equally but which the applicant was unable to afford.
By July 2010, the property at Property S had been sold and over the preceding six months I am satisfied on the evidence that the parties had removed the majority of their possessions to Property W, with the respondent moving his furniture and furnishings to furnish Property W, and the applicant moving her personal effects and clothing and shoes and with the joint intention this could be their home together.
By this time, the unit at Property H had been vacated by the housing commission and I am satisfied that some possessions were left in that unit which was also used by the parties when they were travelling to and fro, preparing Property S for sale.
The respondent’s assertion that he moved into the Property W property in about January 2008 is clearly incorrect. I do not accept the respondent’s assertion that Property S was occupied only by the applicant as asserted by the respondent and that in the meantime he remained at his Property A property visiting Property H every six weeks or so. I do not accept the respondent’s assertion that when discussions were taking place concerning the purchase of the Property W property, that the applicant declined the proposal to purchase on a 50/50 basis on the premise that she was not interested in buying half so his grandchildren could inherit it, and that she would stay at Property H and visit him.[5]
[5] Paragraph 44 of the respondent’s trial affidavit, sworn 12 September 2014 and filed 15 September 2014.
It is clear from the evidence as to the proposal to purchase the Property W property in equal shares that it was intended that it be a home for them both and they would both live in it together.
Whilst there is a significant dispute between the parties as to whether the applicant lived at Property W, I am satisfied on the whole of the evidence that she did and that it was their common principle residence. The applicant continued to travel between Property W and Property H, and Property W and Sydney, seeing her friends and attending the ‘(omitted)’ meetings, with the respondent continuing to attend on some occasions. There is no dispute on the respondent’s own evidence that the applicant moved her personal possessions and effects into Property W, that she slept there from time to time, and there were some social activities which they enjoyed.
I accept the evidence of the applicant that a conversation took place between her and the respondent at Property W on 14 September 2012 when he told her that as far as he was concerned, the relationship was finished and that she would have to leave.[6] I also accept the applicant’s evidence that over the next few days and until 20 September 2012, the applicant went to and fro trying to arrange other accommodation and that on 20 September 2012 when she returned to Property W from Sydney, she found her car packed with her clothing and personal items, and a note from the respondent.[7]
[6] Paragraph 158 of the applicant’s trial affidavit sworn 8 August 2014 and filed 11 August 2014.
[7] Paragraphs 159 – 167 inclusive of the applicant’s trial affidavit sworn 8 August 2014 and filed 11 August 2014.
I find on the whole of the evidence that their common residence ended on 14 September 2012.

Whether a sexual relationship exists

There is no doubt that the parties enjoyed a sexual relationship for the whole of their relationship as conceded by them both which was one of frequency in the earlier days with a subsequent decline as the relationship progressed, but not to the point that the sexual relationship ceased. It is irrelevant that they sometimes occupied separate beds or bedrooms as a consequence of the respondent’s sleep apnoea and degenerate back.
It is of significance in my view that the relationship was monogamous in the sense that neither took nor sought another partner.
Although the respondent made an oblique allegation that the applicant had the opportunity to engage in a sexual relationship with another person, he adduced no evidence in support of such allegation. The applicant denies this occurred.
I am satisfied that the sexual relationship between them was exclusive and that they were faithful to each other.

The degree of financial dependence or interdependence, and any arrangements for financial support, between them

It is not the case of either party that each was financially dependent on the other for day to day support, and I find on the evidence that to that extent each retained her and his own financial independence.
At no stage did they apply for or put into place a joint account for day to day banking with a bank, building society, credit union or other financial institution.
From the outset, and it is not disputed, the respondent made it clear that the applicant had to pay her own way insofar as ordinary household expenses were concerned, and I am satisfied that from time to time she would give money to the respondent while she was living at Property A to meet some of her expenses, and that when she rented the small flat in Property H whilst they looked at real estate, the respondent made a cash contribution to her to share the rent. I do not accept his denial in that respect. Early in the relationship the respondent bought a motor car for the applicant.
But it was in relation to their real estate transactions that I find there was considerable financial dependence and intermingling. Each was dependent on the other to acquire a particular property in which they invariably invested in different shares.
I find they had a common purpose from the beginning of the relationship to acquire real estate by combining their resources and borrowing power to improve their financial position.
It matters not whether such acquisitions were for investment with a view to making a profit or to provide a home. I accept the applicant’s evidence that the aim ultimately was to acquire a suitable home for them both in which they could live together and enjoy the remainder of their lives together.
Whilst the respondent emphasises as part of his case that the intention in acquiring real estate was only for profit, I infer from the manner in which he readily engaged in the acquisition of real estate that his aim also was to provide a home. My reasoning is that upon the sale of Property A, which had been his home for some time there could be no other reason for him to acquire Property W other than for the purposes of a home. He had become disenchanted with Property S for the reasons given by the applicant.

The history of acquisition and disposal of property is set out fully under the heading “Background”, and no useful purpose is served in my revisiting that history, but the significance of the transactions is that together they spoke to real estate agents, looked at property, conducted inspections, spoke to lending bodies and when a mortgage was given jointly as found in the mortgages to the (omitted) Credit Union and the (omitted) Bank, the mortgage liabilities were joint and several irrespective of the percentage share that party held in the subject property.

The ownership, use and acquisition of their property

I have referred earlier to some extent to the use of real property.
The history of acquisition is set out in the chronology to which I have referred earlier under the heading “Background”.
The first acquisition at Property I occurred earlier in the relationship when contracts were exchanged on 24 July 2003.[8] The purchase price was $182,000.00 and the property was purchased by the respondent as to 50%, the applicant as to 45% and her son X as to 5% as tenants in common in those shares. The property was purchased off the plan and let. It was never occupied as a home by the parties. The property was sold during 2009 for $232,000.00 with the applicant and respondent each receiving $116,000.00. The respondent’s original purchase was funded from proceeds of sale of real estate he had owned in Property B in Queensland. There is no evidence before me as to how the applicant funded her share. The property was let and the parties met the overheads in the shares of their ownership.
[8] See Exhibit A1.
There followed the purchase of the residential unit at Property H, in which the applicant purchases the respondent’s 30% share in 2012 for the agreed sum of $50,000.00. This property was largely let during the relationship, funded with borrowed monies secured by a mortgage.
This purchase was followed by the purchase of the unit at Property S in Property H[9] which ultimately is sold in late June or beginning of July 2010.[10] This is followed by the purchase of the property at Property W in late 2009 or early 2010[11] and in the respondent’s name alone, and which is unencumbered after the sale of the respondent’s property at Property A and his share of the property at Property S.
[9] See Paragraph 23 above.
[10] See Paragraph 32 above.
[11] See Paragraph 30 above.
In July 2011 the applicant purchased from Ms J and Mr G a 55% share in a unit at Property H, in her name alone[12] and which was not occupied by the parties as a home.
[12] See Paragraph 34 above.
I find there are two distinct threads running through the acquisition and disposal of real property, the first of which is the use of existing and subsequent property as a home flowing from Property A to Property S to Property W with the occasional other use of the small flat rented short term and Property H. The other thread related to purchase of other real property either jointly or alone for investment only and yielding some profit.
I am satisfied on the whole of the evidence that there was a significant joint enterprise and common purpose in finding, acquiring and disposing of real estate, with the ultimate aim of providing a home. Further, it is not to be overlooked that both were also engaged in the not insignificant task of maintaining and managing each property and collection of rent and any necessary accounting.

The degree of mutual commitment to a shared life

The respondent asserts he was at pains to emphasise that when introducing the applicant to friends she was his friend and business partner.
The applicant perceived herself to be in a long term, loving and caring relationship with reciprocal affection, public commitment and a private total commitment to him. Whilst it was the applicant’s preference to become married, she acknowledged that she had mentioned it probably once or twice in a genteel manner, but that his response was that he was not really interested.
Early in the relationship, the applicant made a new will leaving a small amount to the respondent, but there is no evidence before me as to the quantum. She said that she did so because she was totally committed to him.
The respondent accompanied the applicant to some “(omitted)” activities and the applicant accompanied the respondent to (hobby omitted) and (hobby omitted) on some occasions.
The evidence is that both the applicant and the respondent enjoyed dining out together, walks along the beach when they were living in Property H, and sometimes went to church together. They also holidayed together.
It was the applicant who took care of the respondent when he was taken to hospital with kidney stones in mid-2007, visiting him in hospital before he returned home to Property A. It was the applicant who then looked after the respondent in early 2008 when he suffered a heart attack whilst they were walking along the beach taking him to the doctor and visiting and staying with him in hospital in both (omitted) and (omitted).
Together, they shared a number of friends and activities over the whole relationship, with the respondent’s relatives visiting Australia and spending time with them briefly on about two occasions.
They enjoyed a cruise with friends early in the relationship and together in May 2012, and whilst there is some dispute as to whether the two single beds were put together to make a large single bed or remained separated is immaterial in my view. There is also a dispute about whether the parties enjoyed shore activities together, but I am satisfied on the balance of probabilities that the respondent not only invited but wanted the applicant to join the cruise with him, that they shared the same cabin, and shared at least some shore activities together.
Whilst the respondent was hesitant to concede the nature of the relationship during his cross examination as being more than a friendship and a business relationship, and said emphatically on more than one occasion that:
“We were never a couple.”
he was particularly careful to say he was not in love with her, did not say that he loved her and at the most, had an occasional romantic aspect.
However, the evidence establishes that the respondent sent the applicant a letter[13] written by him during a time he was living at Property A, clearly professing romantic feelings and that he loved her.
[13] See Exhibit A2.
In about 2005 I am satisfied the respondent sent the applicant a greetings card[14] saying that he had purchased some earrings for her and concluding with the words:
[14] See Exhibit A3.
“All my love to you, Mr Lockwood.”
followed by four crosses which he acknowledged were kisses.
In 2010, the respondent sent the applicant a picture postcard of (country omitted) and postmarked (omitted), (country omitted), in which he addresses the applicant as follows:
“Hello Darling”
and concludes by saying:
“All my love. Watch your driving. Take Care. Mr Lockwood xxxxxx[15]”
[15] See Exhibit A4.
When confronted with this material and it was suggested to him that his words were indicative of something more than a friendship, the respondent vehemently denied the proposition and said:
“No more than a business or friendship relationship.”
Earlier, the respondent was asked whether the crosses on the postcard were an indication of kisses, and he responded, somewhat cautiously:
“Well, I can tell you sir, I was always fond of her. Always very fond of Ms Gammon, but never, never marry material.”
The evidence of Ms J in cross examination was significant about social activities she and her husband enjoyed with the applicant and the respondent in Property H when they came up for holidays and special events from their home in Sydney, and they perceived them to be a very loving couple, openly affectionate toward each other. Ms J recounted in detail a particular occasion when there was a singalong in Property H and the applicant was able to encourage the respondent whom she perceived to be quite shy to join in some singing, and he sang a particular song which she remembered.
The evidence of the applicant’s son, X, was significant as to his observation of his mother and the respondent spending time together and being affectionate, and on a number of separate occasions during their relationship and at different places including the “(omitted)” meetings.
I found X to be a witness of truth and particularly sensitive to ensure that his evidence was objective, particularly in his description of the respondent, on some occasions displaying a venal side to his character when playing (hobby omitted), how the respondent was breaking into the local community bit by bit with (hobby omitted), and that his perception of his mother’s relationship with the respondent was that they seemed to get on well, enjoyed each other’s company and were mutually kind and supportive for a long period of time. X qualified that observation by thinking there was also some guardedness about some of the things the respondent was doing when he looked back at it now.
X recalled a particular conversation when his mother had been required to leave the house at Property W after he had sent the respondent a text following his mother contacting him and being very upset when she had been told to leave the house. X recalled sending a text to the respondent as follows:
“Look, I don’t know what has gone on between you two but just don’t hurt her.”
and did not get any response.
X said that about a week later he received a telephone call from the respondent who said to him in quite a strained voice:
“Look, I still love your mother. I just need to be by myself. You know, my heart.”
The respondent conceded in cross examination that he held hands with the applicant but only early in the relationship. The respondent went on to say that he had always got on alright with X, the applicant’s son, and when it was put to him that the respondent had told X in the telephone conversation that he still loved his mother, the respondent said:
“I don’t remember. I’m not sure if I said “I still love your mother”, no.”
The respondent continued to say, no doubt as a reconstruction, that he did not think that he would have said that, certainly not at that time because he was not on very good terms with the applicant.
It is clear from the manner in which the respondent gave evidence about X that he held him in some regard and respect, and particularly that he thought he was a good son to his mother.
I have no hesitation in accepting the evidence of X that the respondent told him that he still loved his mother.
As to housekeeping, there was a significant dispute, with the respondent asserting the applicant made no contribution at all to housekeeping whether in the form of domestic tasks, cooking, washing up, cleaning, shopping and otherwise, and the applicant asserting that she made a significant contribution in each of those fields. The respondent conceded eventually that the applicant had done some washing up sometimes. It seems to me that is a matter which can be explored in much greater detail as to contributions at the next hearing if I am to find there is a de facto relationship within the meaning of the Act.
In spite of the significant reluctance by the respondent to make any concession or admission as to his feelings of love and affection for the applicant, I am satisfied on the whole of the evidence that each party was committed to the other to a high degree to a shared life. My reasoning is that they lived in three principle places together, were committed to each other affectionately both in public and at home, allowed each other a considerable degree of flexibility, particularly with the applicant pursuing her “(omitted)” activities and maintaining relationships with her friends and in their pathway of financial transactions, and the evidence which clearly establishes, and I so find that they loved each other. This was a relationship of much more than a friendship and business partnership.

Whether the relationship is or was registered under a prescribed law of a state or territory as a prescribed kind of relationship

It was not.

The care and support of the children

There are no children of the relationship.

The reputation and public aspects of the relationship

I have referred earlier to the evidence of the applicant’s witnesses as to the public aspects of the relationship. I also take into account the sworn evidence of Mr K as contained in his affidavit, affirmed 29 September 2014 and filed 17 October 2014, and who is the applicant’s cousin. Mr K deposed to observing the applicant and the respondent at his eldest son’s wedding in (omitted) on (omitted) 2003 as a couple so happy to be together. Mr K deposed to occasions when they have stayed at his house in (omitted), and on other occasions when he and his wife had stayed with them at Property A, and at Property W.
Mr K was not shaken in cross examination about his observation about their relationship, and I accept him as a witness of truth.
Further evidence given in cross examination by the respondent’s witness, Mr C, as to whether or not the applicant made various statements earlier in the relationship that she not be classed as a de facto partner does not enable me to make any determination given the applicant’s denial. Further, it is of significance that Mr C swore his affidavit only on 10 November 2014, and admitted readily that he had been required only to recall what had taken place some ten years previously, a week or so prior to swearing his affidavit. I do not attach any significance to his affidavit evidence and it is not determinative.
A further witness in the respondent’s case, Mr M, said he became friendly with the respondent in about 2008 at (hobby omitted), and that he met the applicant with the respondent together at a social activity when he was there with his wife, and that he subsequently saw the applicant and the respondent together about once every three months over a period of about three years, and usually at a (hobby omitted). Mr M perceived them to be a couple and friends, and that he had seen her once at Property W.
It was Mr M’s perception of the relationship that they were business partners but not in a de facto relationship. However, for reasons I have given previously, that is not determinative.
Mr M went on to say he went in to occupation at Property W, which he now rents from the respondent, in October or November, probably the middle of October 2012, and not before.
There were passages of evidence from the respondent’s witnesses as to him addressing the applicant frequently as “darling” or “dear” or something similar, which was confirmed by both Mr C and Mr M. I attach no significance to that evidence as being indicative or determinative of anything other than a salutation frequently employed by the respondent.
The respondent deposed in his trial affidavit[16] that throughout the friendship he informed Centrelink of every property transaction entered into with the applicant and explained that they were not in a de facto relationship.
[16] Paragraph 86 of his trial affidavit sworn 12 September 2014 and filed 15 September 2014.
The respondent did not produce any corroborative evidence of this assertion which in my view could have been done easily by correspondence with or documents from Centrelink. The respondent well knew he denied the existence of a de facto relationship. The failure to produce such corroborative evidence results in my giving no weight to his alleged assertion to Centrelink.

Conclusion

I listened very carefully to the well prepared and concise submissions made by Mr Tregilgas and Mr Mooney.
When I come to weigh the whole of the evidence and take an aerial view, I conclude with little hesitation that the parties were in a de facto relationship within the meaning of Section 4AA of the Family Law Act 1975 from late 2003 until 14 September 2012, that it was a continuous uninterrupted relationship, and which took place for the whole period in the State of New South Wales.
My reasoning is that there was a common residence in the three different places for the whole period. In this context, residence does not mean living together every day, but having a place one regards as home, shared with one’s partner. This was a relationship which was fluid in the sense of the applicant enjoying her friendships and relationships away from the various homes either in Property A, Property H, or Property W on a frequent basis. That does not detract from those three places being her common residence with that of the respondent from time to time. I do not accept the submission made on behalf of the respondent that the applicant was no more than a visitor at the various places.
The evidence establishes clearly that there was a sexual relationship about which the respondent said nothing in his trial affidavit.
I find for the reasons given earlier there was a constant degree of financial dependence and interdependence in relation to their several real property transactions and which clearly had two threads.
Mr Mooney urges upon me that there was a rigid division of their finances, entirely consistent with there not being a genuine domestic relationship between a couple, and consistent with two parties who wish to keep their affairs separate. I do not accept this submission. The separation of their day to day personal expenditure is but one facet of the whole relationship.
Mr Mooney agreed there was a common venture with real estate, with a deliberate intention to create profit, but that was part of a business relationship and submitted, clearly correctly, that the property at Property W was not in the nature of an investment, but a home, but only for the respondent. I find to the contrary. Property W was intended to be a home for them both.
Mr Mooney submitted that the evidence in relation to financial dependence or interdependence and arrangements for financial support was at the best, equivocal, and if that was the case then the applicant had not established the matters she was required to establish for a de facto relationship to be found to exist, given the onus lay with her.
I do not accept the submission that the evidence is equivocal. The evidence is to the contrary.
My reasoning is that it is very clear the parties embarked together upon property acquisitions and disposals which brought about a very high degree of financial dependence and interdependence to achieve that objective.
I find that the ownership, use and acquisition of property during the whole of the relationship was intended for their mutual benefit and enjoyment.
I find also on balance that there was a high degree of mutual commitment by each to the other toward a shared life with the flexibility to which I have referred, which enabled the applicant to pursue her existing friendships and activities elsewhere and the respondent his indoor and outdoor sports.
The reputation and public aspects of their relationship were such that they were seen to be a supportive and loving couple.
I conclude on the whole of the evidence before me from the aerial view to which I have referred that the applicant and the respondent were not two individuals pursuing individual existences or just friends in a business partnership, but rather a caring, loving couple and partnership who had merged their lives and were the epitome of the “manifestation of coupledom” to which His Honour Justice Murphy referred.[17]
[17] See Paragraph 71 above.
I find therefore that a de facto relationship existed for the period to which I have referred.
I therefore make a declaration pursuant to Section 90RD as referred to in the Orders. I will make some directions for the future conduct of the matter.

I certify that the preceding one hundred and sixty four (164) paragraphs are a true copy of the reasons for judgment of Judge Coakes.

Associate:

Date: 29 May 2015