Gilliam & Barre

Case [2022] FedCFamC1F 465

Federal Circuit and Family Court of Australia

(DIVISION 1)

Gilliam & Barre [2022] FedCFamC1F 465

File number(s): SYC 342 of 2019
Judgment of: HARPER J
Date of judgment: 4 July 2022
Catchwords: FAMILY LAW – DE FACTO RELATIONSHIPS – Existence of relationship – Wife seeks declaration under s 90RD of the Family Law Act 1975 (Cth) and orders for property adjustment under s 90SM – Husband denies existence of de facto relationship – Parties involved in concurrent proceedings with husband’s ex-wife, where the wife is a creditor – Both parties self-represented – Where both parties had difficulty focusing on the key issues in the case – Both parties have children from previous relationships – Wife contends relationship commenced in May 2016 and a de facto relationship commenced in June 2016 – Husband concedes existence of relationship, but that it was no more than boyfriend and girlfriend – Parties separated for brief period between December 2016 and February 2017 – Finding made that parties were in a relationship from May 2016 until 21 November 2018 – Wife argues common residence maintained between the parties’ two homes – Although parties spent regular time at each other’s houses, insufficient evidence to find a common residence – Where wife made substantial loans to the husband – Where loans were applied to husband’s personal expenditure and businesses – Finding made that the parties were financially interdependent to a material degree – Parties held no real property together – Parties acquired and used a scaffolding business together, however wife was neither director nor shareholder – Money generated by this business used to pay wife’s rent – Where parties placed focus on a ring and card given by the husband to the wife – Ring and card equivocal evidence of mutual commitment – Parties were involved in the care and support of each other’s children – Relationship had a public aspect, with parties spending regular time together and with each other’s family – Parties shared Christmas and birthday celebrations – Declaration made that de facto relationship existed, commencing not before February 2017, and ending prior to November 2018, a period less than two years – Declaration made that the wife’s loans were a substantial contributions of the kind mentioned in s 90SM(4)(a)–(c) – Where failure to make declaration may result in serious injustice to the wife under s 90SB(1)(c)(ii) – Proceedings to be mentioned to receive further submissions on the question of serious injustice and whether property adjustment under s 90SM should be ordered.
Legislation: Family Law Act 1975 (Cth) ss 4AA, 90RG, 90SB, 90SM
Cases cited:

Barre & Barre [2021] FamCA 101

Barre & Barre and Ors [2020] FamCA 455

Barre & Barre; Gilliam & Barre [2019] FamCA 315

Barre & Barre (Superannuation) [2021] FamCA 463

Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59

Delamarre & Asprey (2014) FLC 93-616; [2014] FamCAFC 218

Fairbairn v Radecki (2022) 400 ALR 613; [2022] HCA 18

Harriot & Arena (2016) FLC 93-702; [2016] FamCAFC 69

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Details
AGLC
Gilliam & Barre [2022] FedCFamC1F 465
Case
[2022] FedCFamC1F 465
Decision Date

CaseChat Overview and Summary

The applicant, Ms Gilliam, sought a declaration that she and the respondent, Mr Barre, were in a de facto relationship for a period of less than two years, along with orders for property adjustment under the Family Law Act 1975 (Cth). The respondent denied the existence of a de facto relationship and the wife's claim for substantial contributions to the relationship. The legal issues for the court to decide were whether a de facto relationship existed between the parties, if so, when it started and ended, and whether the wife made substantial contributions to the relationship. The court found that a de facto relationship did exist between the parties, commencing no earlier than 1 February 2017 and ending by 21 November 2018, and that the wife made substantial contributions during that time. The court based its decision on the degree of financial interdependence between the parties, the nature of their relationship, and the fact that they shared a scaffolding business. Although the parties did not live together, the court found that they shared a degree of financial interdependence and had a relationship of a genuine domestic nature. The court also found that the wife made substantial contributions to the relationship by providing financial support and working for the respondent's businesses.

The court ordered that the proceedings be mentioned on 19 July 2022 for further submissions on the question of serious injustice and whether property adjustment orders should be made. The court also ordered that the parties and the respondent's Trustee in Bankruptcy inform the court whether they wish to adduce further evidence or submissions on the question of serious injustice and whether any claim for spousal maintenance is pressed by the wife. The parties were further ordered to exchange a minute of proposed procedural and final orders, including any proposal for final property adjustment orders, by no later than 4.00 pm on 15 July 2022. The wife's amended application in a case was dismissed. The court's decision was based on the evidence presented and the legal principles set out in the Family Law Act 1975 (Cth). The court found that the wife's evidence was more plausible than that of the respondent and that the relationship between the parties was of a genuine domestic nature. The court also found that the wife made substantial contributions to the relationship, which were a significant factor in its decision.

Orders

Orders of the court

SYC 342 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS GILLIAM

Applicant

AND:

MR BARRE

Respondent

order made by:

HARPER J

DATE OF ORDER:

4 July 2022

THE COURT DECLARES THAT:

1. Pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”), a de facto relationship existed between the Applicant Wife (“the wife”) and the Respondent Husband (“the husband”) for a period of less than two years, commencing no earlier than 1 February 2017 and ending by 21 November 2018.

2. The wife made substantial contributions of the kind mentioned in ss 90SM(4)(a), (b), and (c) of the Act, during the period of the said de facto relationship.

3. Each of the parties was ordinarily resident in NSW during the said de facto relationship, being a participating jurisdiction within s 90RG of the Act.

THE COURT ORDERS THAT:

4. The proceedings be stood over to 19 July 2022 for Mention at 10.30 am.

5. The husband provide a copy of this judgment to his Trustee in Bankruptcy.

6. On the adjourned date, the parties and the Trustee in Bankruptcy shall inform the Court:

(a) Whether they wish to adduce or make any, or any further, evidence or submissions on the question whether the wife would suffer serious injustice within s 90SB(1)(c)(ii) of the Act if the Court failed to make an order for property adjustment pursuant to s 90SM;

(b) Whether any claim for spousal maintenance is pressed by the wife; and

(c) Whether the Court should determine the remaining questions by written submissions and in chambers.

7. By no later than 4.00 pm on 15 July 2022 the parties shall exchange a minute of proposed procedural and final orders, including any proposal for final property adjustment orders pursuant to s 90SM of the Act, in the event the Court determines it has jurisdiction by reason of the satisfaction s 90SB(c)(ii) of the Act.

8. The Amended Application in a Case filed by the wife on 2 September 2020 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

However, the husband is presently bankrupt, and his Trustee in Bankruptcy (“the trustee”), who is a party to the 2016 proceedings and these proceedings, is currently restrained, by orders made in those proceedings, from distributing any dividend pending the compliance with certain orders in the 2016 proceedings and determination of these proceedings.BACKGROUND The history of the parties’ relationship will be explained and discussed in the course of these reasons, but some brief basic facts can be recorded here. The wife was born in 1973, and the husband in 1972. There are no children of the relationship. The wife has three children, XX, YY, and ZZ, from a previous marriage. The husband has three children from two previous relationships, Ms H, X, and Y. Ms H has reached majority. The husband is presently engaged in concurrent parenting proceedings in this court concerning X and Y with Ms Barre. It is undisputed that the parties met in 2014, where they were working in offices close to one another. The wife was employed by WW Company, whilst the husband owned a company trading as “[EE Company]”. PROCEDURAL HISTORY These proceedings have taken an inordinate time to reach finality, caused by the manner in which the parties, who have been self-represented for most of the proceedings, presented their cases, their health problems, a range of misconceived and convoluted interlocutory applications, and the disruptions brought about by the Covid-19 pandemic. The somewhat tortured path the proceedings have taken will, as will become clear, influence the orders made on the basis of these reasons, and likely lead to the need for some further consideration. The wife commenced these proceedings in the Family Court of Australia (as it then was) on 22 January 2019. At that point, she was represented. In addition to the declaration pursuant to s 90RD as to the existence of a de facto relationship and orders for property adjustment under s 90SM of the Act, she sought payment of $293,000 from the husband as a debt owed. The wife also made an application for spousal maintenance and litigation funding which she pressed to be urgently listed. A registrar made orders listing these applications on 8 May 2019. On 27 March 2019, the wife filed an Application in a Case seeking review of this decision and an earlier listing date. The review application was listed for mention on 8 April 2019. On that date, I made orders by consent for the parties to finalise their material concerning the wife’s final and interim applications. I also listed these proceedings for hearing for three days commencing on 6 May 2019. I was also made aware for the first time of the existence of the 2016 proceedings which, as it happened, were also listed on 6 May 2019. I noted that consideration would be given on that date to consolidating the two proceedings. The husband’s then-solicitors filed a Notice of Ceasing to Act on 3 May 2019. As a result, when the proceedings came before me on 6 May 2019, the husband was self-represented. The wife was represented by counsel. The husband sought an adjournment of all proceedings. I observed the husband presented in court as emotional and, at times, confused in his submissions. The wife’s counsel fairly conceded that these proceedings could not proceed in the circumstances: Barre & Barre; Gilliam & Barre at [24]. I granted the adjournment and gave leave to the wife, on her application, to intervene in the 2016 proceedings. I directed these proceedings should be heard consecutively with, and following the 2016 proceedings. The wife was joined as the Third Respondent in the 2016 proceedings and the sum of $25,000 was released to her, as well as other parties, from a Controlled Moneys Account.

Evidence

Evidence Before The Court

The husband sought that the wife’s application for final declarations and orders be dismissed, arguing that the court would not find the existence of a de facto relationship, nor would the court find that the wife made any substantial contributions to the relationship. EVIDENCE The parties each sought to rely on an extensive range of documents, many of which were not relevant for the issues to be determined. It is not necessary to set out their lists in full. The husband also relied upon eight witness affidavits, three of whom were cross-examined by the wife. The following documents were received into evidence: The husband filed a number of affidavits from witnesses giving evidence of their observations of the parties’ relationship. At the final hearing, not all the affidavits of these witnesses were received into evidence.Ms H Ms H is the husband’s daughter from a previous relationship. On the first day of hearing, counsel appearing for the husband informed the court that Ms H was unavailable to be cross-examined. In accordance with the Rules, the court made clear that no account would be taken of Ms H’s evidence unless she was made available. This did not happen, she was not cross-examined, and her affidavit was not read. I have not taken her evidence into account.Mr AP The wife informed the court on the first day of hearing that she intended to cross-examine Mr AP. As already noted, counsel for the husband agreed this could take place before the wife gave evidence. On the afternoon of the first day, counsel for the husband made clear that Mr AP would be available to give evidence on the second day, 3 October 2020. Mr AP was present for cross-examination in the precincts of the court. However, cross-examination did not happen because of the inability of the wife to proceed on the second day. The wife did not press for Mr AP to be cross-examined thereafter. However, since he was not cross-examined, I have not taken his evidence into account.Mr AR The affidavit of Mr AR was not read and he was not cross-examined. I will discuss the balance of the husband’s other witnesses later in these reasons. Each party asked questions of the other. I formed the view that both exaggerated their respective positions, with the wife claiming the parties had formed a de facto relationship almost immediately upon beginning a sexual relationship, while characterising almost every aspect of the parties’ interactions as confirming the de facto nature of their relationship. On the other hand, for the purpose of denying any de facto relationship, the husband diminished or trivialised, often quite implausibly, a number of significant events or aspects of their relationship. Neither party was entirely reliable, but on balance and broadly speaking, the evidence and arguments of the wife were better presented and more plausible than those of the husband. I do not accept the evidence of either party entirely, and will specify at the appropriate places in these reasons what evidence I have accepted.THE LAW

Decision

Reasons for decision

The parties provided scant evidence about this property, perhaps because the relationship ended approximately four months later. Given the absence of evidence, I am not satisfied the parties maintained a common residence in the Suburb BG property at any time. Conclusion Despite her contentions that the parties maintained a common residence from approximately May or June 2016 onwards, there was no evidence, as the husband pointed out, that the wife changed her address to his residence on any official documents, such as her driver’s licence. Having regard to all the evidence, I am unable to conclude the parties maintained a common residence at any time during their relationship, even if they clearly spent time in each other’s homes. They may have spent time in the same premises for social occasions, and special occasions such as birthdays, and routinely overnight or for some longer periods on occasion such as when the husband was recuperating. There were elements of interaction and sharing, sporadically in the same place. However, I find that the parties maintained separate homes. I find that the wife helped the husband with domestic tasks and care of his children, but he also regularly received support from others, such as Ms VV and Mr AB, quite separately from the wife. While I find each party regularly spent time in the home of the other, I do not find that the parties had a common residence, including a residence constituted by both their homes.(c) whether a sexual relationship exists; There was no dispute that the parties engaged in a sexual relationship. They differed on the dates during which this existed. The husband states a sexual relationship lasted from June 2016 until September or October 2018, whilst the wife argues it commenced in April 2016 and concluded in December 2018, apparently without any interruption. The wife’s contention in this regard seems less plausible in view of the admitted separation at the end of 2016 and the husband’s problems with addiction and substance abuse. I accept there was a sexual relationship from May 2016 until no later than 21 November 2018.(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; It was common ground that the parties did not have any joint bank accounts or credit cards, nor did they purchase any property together. The wife argued she made significant financial contributions during the relationship upon which the husband depended. The wife had an interest in a property located at BH Street at the commencement of the relationship. The wife argued that she had $37,000 in cash as at May 2016. She then received $470,000 from the sale of BH Street from which she paid her former husband $70,000. She gave evidence, therefore, that during the relationship she disbursed all but about $10,000 of $437,000 in loans to the husband, money injected into his businesses, and the parties’ joint living expenses. In 2016, the wife was working for WW Company, however in August of that year, she states she reduced her hours to 12 hours a week in order to spend more time assisting the husband with domestic duties and his businesses. The wife gave evidence that after the husband gave her the ring, which will be discussed later in this judgment, she worked for the husband’s businesses. On 16 November 2016, she left WW Company and worked for the husband until December 2018. However, she worked unpaid until January 2018, when DD Pty Ltd began to trade.

Ratio Decidendi

Legal Principle Established

Section 90RD empowers the court to declare a factual position, which the court must find before any jurisdiction to make property adjustment orders under Part VIIIAB is enlivened. 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.… It is important to remember that the period of the relationship and the question of contributions are also central to the exercise of any discretion pursuant to s 90SM. The property adjustment provisions applying to de facto relationships fall within Division 2 of Part VIIIAB. Section 90SB requires certain further factual findings before orders can be made pursuant to s 90SM:90SB When this Division applies—length of relationship etc.A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:(a) that the period, or the total of the periods, of the de facto relationship is at least 2 years; or(b) that there is a child of the de facto relationship; or(c) that:(i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and(ii) a failure to make the order or declaration would result in serious injustice to the applicant; or(d) that the relationship is or was registered under a prescribed law of a State or Territory. In the presentation of their cases, the parties were rather unfocussed. They spent a material amount of time in the hearing being argumentative and bickering with each other. As I understood her case, if the court finds a de facto relationship exists, the wife relies on ss 90SB(a) and (c). At the hearing, the wife emphasised paragraph (a) and focussed primarily on the period of two years. This distracted attention from her other contentions, namely that she made substantial contributions of a kind mentioned in ss 90SM(4)(a), (b) or (c), and that a failure to make the declaration or orders for property adjustment would result in serious injustice to her.